SUB-ADVISORY AGREEMENT
XXXXXXX XXXXX ASSET MANAGEMENT, L.P.
THIS SUB-ADVISORY AGREEMENT (the "Agreement") is made
as of the 1st day of July, 2005 among WT Mutual Fund, a Delaware
business trust (the "Fund"), Xxxxxx Square Management
Corporation (the "Adviser"), a Delaware corporation, and Xxxxxxx
Xxxxx Asset Management, L.P., a Delaware limited partnership
organized under the laws of the State of Delaware (the "Sub-
Adviser").
WHEREAS, the Fund is registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company and offers for public sale several
series of shares of beneficial interest, a series of which is
the Wilmington International Strategic Allocation Fund (the
"Portfolio");
WHEREAS, the Adviser acts as the investment adviser
for the Portfolio pursuant to the terms of an Investment
Advisory Agreement between the Fund and the Adviser under which
the Adviser is responsible for the coordination of investment of
the Portfolio's assets in portfolio securities; and
WHEREAS, the Adviser is authorized under the
Investment Advisory Agreement to delegate its investment
responsibilities to one or more persons or companies;
NOW THEREFORE, in consideration of the promises and
mutual covenants herein contained, the Fund, the Adviser and the
Sub-Adviser agree as follows:
1. Appointment of Sub-Adviser. The Adviser and the Fund
hereby appoint and employ the Sub-Adviser as a discretionary
portfolio manager, on the terms and conditions set forth herein,
of those assets of the Portfolio which the Adviser determines to
assign to the Sub-Adviser (those assets being referred to as the
"Portfolio Account"). The Adviser may, from time to time, make
additions to and withdrawals from the Portfolio Account.
The Sub-Adviser acknowledges that the Fund may have one or
more other sub-advisers and that the Adviser shall from time to
time determine the portion of the Fund's assets to be managed by
the Sub-Adviser. With respect to the Fund, the Sub-Adviser
shall be responsible only for the Portfolio Account and the Sub-
Adviser shall have no responsibility for, and shall be released
from any liabilities or losses relating to, any other portion(s)
or segment(s) of the Fund.
2. Acceptance of Appointment. The Sub-Adviser accepts its
appointment as a discretionary portfolio manager and agrees to
use its professional judgment to make investment decisions for
the Portfolio with respect to the investments of the Portfolio
Account and to implement such decisions on a timely basis in
accordance with the provisions of this Agreement.
3. Delivery of Documents. The Adviser has furnished the Sub-
Adviser with copies properly certified or authenticated of each
of the following and will promptly provide the Sub-Adviser with
copies properly certified or authenticated of any amendment or
supplement thereto:
a. The Portfolio's Investment Advisory Agreement;
b. The Fund's most recent effective registration
statement and financial statements as filed with the Securities
and Exchange Commission;
c. The Fund's Agreement and Declaration of Trust and By-
Laws; and
d. Any policies, procedures or instructions adopted or
approved by the Fund's Board of Trustees relating to obligations
and services provided by the Sub-Adviser.
4. Portfolio Management Services of the Sub-Adviser. The Sub-
Adviser is hereby employed and authorized to select portfolio
securities for investment by the Portfolio, to purchase and to
sell securities for the Portfolio Account, and upon making any
purchase or sale decision, to place orders for the execution of
such portfolio transactions in accordance with Sections 6 and 7
hereof and Schedule A hereto (as amended from time to time). In
providing portfolio management services to the Portfolio
Account, the Sub-Adviser shall be subject to and shall conform
to such investment restrictions as are set forth in the 1940 Act
and the rules thereunder, the Internal Revenue Code, applicable
state securities laws, the supervision and control of the Board
of Trustees of the Fund, such specific instructions as the Board
of Trustees may adopt and communicate to the Sub-Adviser, the
investment objective, policies and restrictions of the Fund
applicable to the Portfolio furnished pursuant to Section 5 of
this Agreement, the provisions of Schedule A and Schedule B
hereto and other instructions communicated to the Sub-Adviser by
the Adviser. The Sub-Adviser is not authorized by the Fund to
take any action, including the purchase or sale of securities
for the Portfolio Account, in contravention of any restriction,
limitation, objective, policy or instruction described in the
previous sentence. The Sub-Adviser shall maintain on behalf of
the Fund the records listed in Schedule B hereto (as amended
from time to time). At the Fund's reasonable request, the Sub-
Adviser will consult with the Fund or with the Adviser with
respect to any decision made by it with respect to the
investments of the Portfolio Account.
5. Investment Objective, Policies and Restrictions. The Fund
will provide the Sub-Adviser with the statement of investment
objective, policies and restrictions applicable to the Portfolio
as contained in the Portfolio's Prospectus and Statement of
Additional Information, all amendments or supplements to the
Prospectus and Statement of Additional Information, and any
instructions adopted by the Board of Trustees supplemental
thereto. The Fund agrees, on an ongoing basis, to notify the
Sub-Adviser in writing of each change in the fundamental and
non-fundamental investment policies of the Portfolio and will
provide the Sub-Adviser with such further information concerning
the investment objective, policies, restrictions and such other
information applicable thereto as the Sub-Adviser may from time
to time reasonably request for performance of its obligations
under this Agreement. The Fund retains the right, on written
notice to the Sub-Adviser or the Adviser, to modify any such
objective, policies or restrictions in accordance with
applicable laws, at any time.
6. Transaction Procedures. All transactions will be
consummated by payment to or delivery by the custodian
designated by the Fund (the "Custodian"), or such depositories
or agents as may be designated by the Custodian in writing, of
all cash and/or securities due to or from the Portfolio Account,
and the Sub-Adviser shall not have possession or custody
thereof. The Sub-Adviser shall advise the Custodian and confirm
in writing to the Fund and to the administrator designated by
the Fund or any other designated agent of the Fund, all
investment orders for the Portfolio Account placed by it with
brokers and dealers and, to the extent applicable, Futures
Commission Merchants ("FCM") at the time and in the manner set
forth in Schedule A hereto (as amended from time to time). The
Fund shall issue to the Custodian such instructions as may be
appropriate in connection with the settlement of any transaction
initiated by the Sub-Adviser. The Fund shall be responsible for
all custodial arrangements and the payment of all custodial
charges and fees, and, upon giving proper instructions to the
Custodian, the Sub-Adviser shall have no responsibility or
liability with respect to custodial arrangements or the acts,
omissions or other conduct of the Custodian, except that it
shall be the responsibility of the Sub-Adviser to take
appropriate action if the Custodian fails to confirm in writing
proper execution of the instructions.
7. Allocation of Brokerage. The Sub-Adviser shall have
authority and discretion to select brokers and dealers
(including brokers that may be affiliates of the Sub-Adviser to
the extent permitted by Section 7(c) hereof) to execute
portfolio transactions initiated by the Sub-Adviser, and for the
selection of the markets on or in which the transactions will be
executed, subject to the following and subject to conformance
with the policies and procedures disclosed in the Fund's
Prospectus and Statement of Additional Information and the
policies and procedures adopted by the Fund's Board of Trustees
provided that with respect to procedures governing transactions
involving affiliates such as those adopted pursuant to the 1940
Act. Rule 17a-7, Rule 17e-1 and Rule 10f-3, such procedures
will identify any affiliate of the Adviser and the Portfolio,
other than affiliates of the Sub-Adviser. The Sub-Advisor shall
not bear any responsibility and shall be released from any loss
or cost which results from entering into a trade pursuant to the
Portfolio's Rule 17a-7, 17e-1 or 10f-3 procedures with any
affiliated entity, other than affiliates of the Sub-Advisor, not
specifically identified to the Sub-Advisor by the Advisor.
a. In executing portfolio transactions, the Sub-Adviser
will give primary consideration to securing the best execution.
Consistent with this policy, the Sub-Adviser may consider the
financial responsibility, research and investment information
and other services provided by brokers or dealers who may effect
or be a party to any such transaction or other transactions to
which other clients of the Sub-Adviser may be a party. It is
understood that neither the Fund, the Adviser nor the Sub-
Adviser has adopted a formula for allocation of the Fund's
investment transaction business. It is also understood that it
is desirable for the Fund that the Sub-Adviser have access to
supplemental investment and market research and security and
economic analyses provided by certain brokers who may execute
brokerage transactions at a higher commission to the Fund than
may result when allocating brokerage to other brokers on the
basis of seeking the lowest commission. Therefore, the Sub-
Adviser is authorized to place orders for the purchase and sale
of securities for the Portfolio with certain such brokers,
subject to review by the Fund's Board of Trustees from time to
time with respect to the extent and continuation of this
practice. It is understood that the services provided by such
brokers may be useful to the Sub-Adviser in connection with its
services to other clients of the Sub-Adviser. The Sub-Adviser
is also authorized to place orders with certain brokers for
services deemed by the Adviser to be beneficial for the Fund;
and the Sub-Adviser shall follow the directions of the Adviser
or the Fund in this regard.
b. On occasions when the Sub-Adviser deems the purchase
or sale of a security to be in the best interest of the
Portfolio as well as other clients of the Sub-Adviser, the Sub-
Adviser, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate
the securities to be sold or purchased in order to obtain the
best execution. In such event, allocation of the securities so
purchased or sold, as well as expenses incurred in the
transaction, will be made by the Sub-Adviser in the manner it
considers to be equitable and consistent with its fiduciary
obligations to the Fund in respect of the Portfolio and to such
other clients.
c. The Sub-Adviser may engage in agency transactions with
any of its affiliated broker-dealers subject to best execution,
in accordance with Section 11(a) of the Securities Exchange Act
and Rule 11a2-2(T) thereunder. The Sub-Adviser further agrees
that it will not execute any portfolio transactions for the
Portfolio Account with any other broker or dealer which is (i)
an affiliated person of the Fund, the Adviser or any other sub-
adviser for any Portfolio of the Fund; (ii) a principal
underwriter of the Fund's shares; or (iii) an affiliated person
of such an affiliated person or principal underwriter, unless
such transactions are (x) exempt under Rules 10f-3(b) or 17a-10,
(y) executed in accordance with Rule 17e-1 of the 1940 Act and
the Fund's Rule 17e-1 procedures, as adopted in accordance with
Rule 17e-1 or (z) executed in accordance with Rule 10f-3(c) of
the 1940 and the Fund's Rule 10f-3(c) procedures, as adopted in
accordance with Rule 10f-3. The Adviser agrees that it will
provide the Sub-Adviser with a list of such affiliated brokers
and dealers.
d. The Sub-Adviser acknowledges and agrees that in
connection with the exemptions provided under Rules 10f-3(b),
12d3-1, and 17a-10 under the 1940 Act, the Sub-Adviser (i) will
not consult with any other sub-adviser of the Portfolio, which
is advising the Portfolio, concerning the Sub-Adviser or its
affiliated persons' transactions with the Portfolio in
securities or other assets of the Portfolio, and (ii) will be
limited to providing investment advice with respect to the
Portfolio Account.
e. The Adviser hereby agrees and consents that the Sub-
Adviser and its affiliates are authorized to execute agency
cross transactions (collectively "Cross transactions") for the
Portfolio provided such transactions comply with Rule 206(3)-2
under the Investment Advisers Act of 1940 ("Advisers Act"), Rule
17e-1 under the 1940 Act and any other applicable laws or
regulations. Cross transactions are transactions which may be
effected by the Sub-Adviser or its affiliates acting as broker
for both the Portfolio and the counterparty to the transaction.
Cross transactions enable the Sub-Adviser to purchase or sell a
block of securities for an account at a set price and possibly
avoid an unfavorable price movement that may be created through
entrance into the market with such purchase or sell order.
However, the Adviser should note that the Sub-Adviser has a
potentially conflicting division of loyalties and
responsibilities regarding both parties to Cross transactions
and that the Sub-Adviser, or any of its affiliates, if acting as
broker; may receive commissions from both parties to such
transactions. The Sub-Adviser acknowledges that it is
prohibited from recommending any Cross transactions to its
advisory clients on both sides of the transaction and
understands that its authority as the Sub-Adviser to execute
Cross transactions for the Account is terminable at will without
penalty, effective upon receipt by the Sub-Adviser of written
notice from the Adviser, and that the failure to terminate such
authorization will result in its continuation.
f. In connection with any Cross transactions, the Sub-
Adviser will provide the Portfolio with a confirming letter
describing the details of such trades, and other reports or
information that the Portfolio may reasonably request. The Sub-
Adviser will disclose to the Portfolio the commissions received
by the Sub-Adviser or its affiliates for executing the other
side of the transaction.
8. Proxies. The Sub-Adviser will vote all proxies solicited
by or with respect to issuers of securities in which assets of
the Portfolio Account may be invested from time to time
consistent with the Sub-Adviser's proxy voting guidelines and
procedures, as submitted to the Board of Trustees for review
from time to time.
9. Reports to the Sub-Adviser. The Fund will provide the Sub-
Adviser with such periodic reports concerning the status of the
Portfolio Account as the Sub-Adviser may reasonably request.
10. Fees for Services. For the services rendered, the Sub-
Adviser shall be paid an annual fee of 0.50% of the average
daily net assets of the Portfolio Account. The fee shall be
payable monthly as soon as practicable after the last day of
each month based on the Portfolio Account's average daily net
assets.
11. Other Investment Activities of the Sub-Adviser. The
Adviser understands that the Sub-Adviser is part of a worldwide,
full service investment banking, broker-dealer, asset management
organization, and as such, the Sub-Adviser and its affiliates
and their managing directors, directors, officers and employees
have multiple advisory, transactional and financial and other
interests as more fully described in the Sub-Adviser 's Form
ADV, Part II. The Adviser understands that the Sub-Adviser's
affiliates offer a broad range of brokerage and investment
banking services, that the employees of the Sub-Adviser and its
affiliates may from time to time act as directors, officers, or
employees of companies whose securities are publicly traded, and
that as a result, such employees may acquire information of a
confidential nature. The Adviser agrees that the Sub-Adviser
may, but shall not be required to, render investment advice with
respect to any such company, and that the Sub-Adviser may in its
discretion withhold any such knowledge or information or refuse
to advise with respect to such company, whether or not the
Portfolio Account shall include securities of such company, if
in the Sub-Adviser's judgment the disclosure of such knowledge
or information or the rendering of investment advice on the
basis thereof would be unfair, inequitable, a breach of any
fiduciary obligation of the Sub-Adviser to some other person, or
unlawful. For the same reasons, the Sub-Adviser may, in its
discretion, exclude securities and other property from the
Portfolio Account, and the Sub-Adviser shall not be required to
give advice on securities and other property which it or its
affiliates have distributed, are distributing or propose to
distribute. The Sub-Adviser and any affiliated parties may give
advice and take action in the performance of their duties with
respect to any of their clients which may differ from advice
given, or the timing or nature of action taken, with respect to
the Fund. Nothing in this Agreement shall be deemed to impose
upon the Sub-Adviser or any affiliated parties any obligation to
purchase or sell or to recommend for purchase or sale for the
Fund any security or other property which the Sub-Adviser or any
affiliated parties may purchase or sell for their own account or
for the account of any other client, if in the Sub-Adviser's
sole discretion, such action or such recommendation is
undesirable or impractical for the Fund. Nothing in this
Agreement shall limit or restrict the Sub-Adviser or any
affiliated parties from trading for their own account. The Sub-
Adviser or any affiliated parties or other clients may have or
trade in investments which are at the same time being traded for
the Fund. The Sub-Adviser shall have no obligation to acquire
for the Fund a position which the Sub-Adviser or any affiliated
parties may acquire for their own or the account of another
client, so long as it continues to be the policy and practice of
the Sub-Adviser not to favor or disfavor any client or class of
clients in the allocation of investment opportunities.
12. Certificate of Authority. The Fund, the Adviser and the
Sub-Adviser shall furnish to each other from time to time
certified copies of the resolutions of their Boards of
Trustees/Directors or executive committees, as the case may be,
evidencing the authority of officers and employees who are
authorized to act on behalf of the Fund, the Portfolio Account,
the Adviser and/or the Sub-Adviser.
13. Limitation of Liability. The Sub-Adviser shall not be
liable for any action taken, omitted or suffered to be taken by
it in its reasonable judgment, in good faith and believed by it
to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement, or in accordance with (or
in the absence of) specific directions or instructions from the
Fund or the Adviser, provided, however, that such acts or
omissions shall not have resulted from the Sub-Adviser's willful
misfeasance, bad faith, gross negligence or a reckless disregard
of duty. Nothing in this Section 13 shall be construed in a
manner inconsistent with Section 17(i) of the 1940 Act.
14. Confidentiality. Subject to the duty of the Sub-Adviser,
the Adviser and the Fund to comply with applicable law,
including any demand of any regulatory or taxing authority
having jurisdiction, the parties hereto shall treat as
confidential all material non-public information pertaining to
the Portfolio Account and the actions of the Sub-Adviser, the
Adviser and the Fund in respect thereof.
15. Assignment. This Agreement shall terminate automatically
in the event of its assignment. The Sub-Adviser shall notify
the Fund and the Adviser in writing sufficiently in advance of
any proposed change of control within the meaning of the 1940
Act to enable the Fund and the Adviser to take the steps
necessary to enter into a new contract with the Sub-Adviser.
16. Representations, Warranties and Agreements of the Fund.
The Fund represents, warrants and agrees that:
a. The Sub-Adviser has been duly appointed by the Board
of Trustees of the Fund to provide investment services to the
Portfolio Account as contemplated hereby.
b. The Fund will deliver to the Sub-Adviser a true and
complete copy of its then current Prospectus and Statement of
Additional Information as effective from time to time and such
other documents or instruments governing the investment of the
Portfolio Account and such other information as is necessary for
the Sub-Adviser to carry out its obligations under this
Agreement.
c. The Fund is currently in compliance and shall continue
to comply with the material requirements imposed upon the Fund
by applicable law and regulations.
17. Representations, Warranties and Agreements of the Adviser.
The Adviser represents, warrants and agrees that:
a. The Adviser has been duly authorized by the Board of
Trustees of the Fund to delegate to the Sub-Adviser the
provision of investment services to the Portfolio Account as
contemplated hereby.
b. The Adviser is currently in compliance and shall
continue to comply with the requirements imposed upon the
Adviser by applicable law and regulations.
c. The Adviser is registered as an "investment adviser"
under the Investment Advisers Act of 1940 ("Advisers Act") and
will continue to be so registered for so long as this Agreement
remains in effect.
d. The Fund and the Advisor acknowledge and agree that
the Sub-Advisor shall have no supervisory responsibilities with
respect to any anti-money laundering program or efforts on
behalf of the Fund or the Portfolio.
e. The Adviser has the authority to enter into and
perform the services contemplated by this Agreement and will
promptly notify the Sub-Adviser of the occurrence of any event
that would disqualify it from serving as an investment adviser
of any investment company pursuant to Section 9(a) of the 1940
Act or otherwise.
f. The Adviser represents and warrants that the Fund is
duly registered as an open-end investment company under the 1940
Act and shall promptly notify the Sub-Adviser if the Fund is no
longer so registered or covered by an applicable exemption from
registration.
18. Representations, Warranties and Agreements of the Sub-
Adviser. The Sub-Adviser represents, warrants and agrees that:
a. The Sub-Adviser is registered as an "investment
adviser" under the Advisers Act and has the authority to enter
into and perform the services contemplated by this Agreement.
The Sub-Adviser is currently in compliance and shall
continue to comply with the requirements imposed upon the Sub-
Adviser by applicable law and regulations.
b. The Sub-Adviser will maintain, keep current and
preserve on behalf of the Fund, in the manner required or
permitted by the 1940 Act, the records identified in Schedule B.
The Sub-Adviser agrees that such records (unless otherwise
indicated on Schedule B) are the property of the Fund, and will
be surrendered to the Fund promptly upon request. The Sub-
Adviser agrees to keep confidential all records of the Fund and
information relating to the Fund, unless the release of such
records or information is otherwise consented to in writing by
the Fund or the Adviser. The Fund and the Adviser agree that
such consent shall not be unreasonably withheld and may not be
withheld where the Sub-Adviser may be exposed to civil or
criminal contempt proceedings or when required to divulge such
information or records to duly constituted authorities.
c. The Sub-Adviser will complete such reports concerning
purchases or sales of securities on behalf of the Portfolio
Account as the Adviser or the Fund may from time to time require
to ensure compliance with the 1940 Act, the Internal Revenue
Code, applicable state securities laws and applicable statutes
and regulations of foreign jurisdictions.
d. The Sub-Adviser has adopted a written code of ethics
complying with the requirements of Rule 17j-1 under the 1940 Act
and Section 204A of the Advisers Act and has provided the Fund
with a copy of the code of ethics and evidence of its adoption.
Within forty-five (45) days of the end of the last calendar
quarter of each year while this Agreement is in effect or upon
the written request of the Adviser, the president or a vice
president or general partner of the Sub-Adviser shall certify to
the Fund that the Sub-Adviser has complied with the requirements
of Rule 17j-1 and Section 204A during the previous year and that
there has been no violation of the Sub-Adviser's code of ethics
or, if such a violation has occurred, that appropriate action
was taken in response to such violation. Upon the written
request of the Fund, the Sub-Adviser shall permit the Fund, its
employees or its agents to examine the reports required to be
made to the Sub-Adviser by Rule 17j-1(d)(1).
e. The Sub-Adviser will, promptly after filing with the
Securities and Exchange Commission an amendment to its Form ADV
that materially impacts the Sub-Adviser's policies, procedures
or personnel related to its duties hereunder, furnish a copy of
such amendment to the Fund and the Adviser.
f. The Sub-Adviser will promptly notify the Fund and the
Adviser of the occurrence of any event which would disqualify
the Sub-Adviser from serving as an investment adviser of an
investment company pursuant to Section 9 of the 1940 Act or
otherwise. The Sub-Adviser will also immediately notify the
Fund and the Adviser if it is served or otherwise receives
notice of any action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court,
public board or body, involving the affairs of the Portfolio.
19. Use of Xxxxxxx Xxxxx Name. It is understood that the name
"Xxxxxxx, Sachs & Co." or "Xxxxxxx Xxxxx" or any derivative
thereof, any trade name, trademark, trade device, service xxxx,
symbol or logo associated with those names are the valuable
property of the Sub-Adviser and that the Adviser has the right
to use such names (or derivative or logo), in offering materials
or promotional or sales-related materials of the Portfolio, only
with the prior written approval of the Sub-Adviser and for so
long as the Sub-Adviser is Sub-Adviser of the Portfolio.
Notwithstanding the foregoing, the Sub-Adviser's approval is not
required when (i) previously approved materials are re-issued
with minor modifications, or (ii) the Adviser and Sub-Adviser
identify materials which they jointly determine do not require
the Sub-Adviser's approval. Upon termination of this Agreement,
the Portfolio and the Adviser shall forthwith cease to use such
name (or derivative or logo).
20. Tax Compliance Tests. The Adviser shall be responsible for
performing tax compliance testing to monitor that the Portfolio
is in compliance with subchapter M of the Internal Revenue Code.
21. Indemnification. The Adviser agrees to indemnify and hold
harmless the Sub-Adviser and its officers, directors, agents and
employees from any losses, claims, damages, liabilities or
litigation (including reasonable legal and other related
expenses) incurred by the Sub-Adviser that (i) are based upon
any willful misfeasance, bad faith or gross negligence by the
Adviser (other than Sub-Adviser or its employees); or (ii) are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement,
prospectus covering shares of the Portfolio, Fund marketing
materials and advertising, or any amendment thereof or any
supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statement therein not misleading, unless
such statement or omission was made in reliance upon written
information furnished to the Portfolio or the Adviser or any
affiliated person of the Adviser by the Sub-Adviser or any
affiliated person of the Sub-Adviser which itself is materially
misleading; and further provided, however, that the Adviser's
obligation under this Paragraph 21 shall be reduced to the
extent that the claim against, or the loss, liability, damage or
litigation experienced by the Sub-Adviser, is caused by or is
otherwise directly related to the Sub-Adviser's own willful
misfeasance, bad faith or gross negligence.
The Sub-Adviser shall indemnify and hold harmless the Adviser
and its officers, directors, agents and employees from and
against any and all claims, losses, liabilities, damages or
litigation (including reasonable attorney's fees and other
related expenses) incurred by the Adviser that are based upon
the willful misfeasance, bad faith, gross negligence or material
breach of this Agreement by the Sub-Adviser, provided, however,
that the Sub-Adviser's obligation under this Paragraph 21 shall
be reduced to the extent that the claim against, or the loss,
liability, damage or litigation experienced by the Adviser, is
caused by or is otherwise directly related to the Adviser's own
willful misfeasance, bad faith or gross negligence.
Without limitation, the Sub-Adviser shall not have breached any
obligation to the Adviser and shall incur no liability for
losses resulting from (i) the actions of either the Advisor or
the Fund's previous sub-advisor or from following, in accordance
with the standards set forth in this Agreement, the directions
of the Adviser, or the Sub-Advisers' failure to follow unlawful
directions of the Adviser; (ii) any act or omission of any other
sub-advisers to the Fund; or (iii) a force majeure or other
events beyond the control of the Sub-Adviser, including without
limitation any failure, default or delay in performance
resulting from computer failure or a breakdown in communications
not reasonably within the control of the Sub-Adviser. No
warranty is given by the Sub-Adviser as to the performance or
profitability of the Fund or any part thereof or that the
investment objectives of the Fund, including without limitation
its risk control or return objectives, will be successfully
accomplished and the Sub-Adviser shall have no liability in
respect of any losses arising as a result of any failure to
achieve such objectives absent willful misfeasance, bad faith or
gross negligence.
The provisions of this Paragraph 21 shall survive termination of
this Agreement.
22. Amendment. This Agreement may be amended at any time, but
only by written agreement among the Sub-Adviser, the Adviser and
the Fund, which amendment, other than amendments to Schedule A
and Schedule B, is subject to the approval of the Board of
Trustees and, to the extent required by the 1940 Act, the
shareholders of the Portfolio in the manner required by the 1940
Act and the rules thereunder, subject to any applicable orders
of exemption issued by the Securities and Exchange Commission.
23. Effective Date; Term. This Agreement shall become effective
on the date first written above and shall remain in force for a
period of time of two years from such date, and from year to
year thereafter but only so long as such continuance is
specifically approved at least annually by the vote of a
majority of the Trustees who are not interested persons of the
Fund, the Adviser or the Sub-Adviser, cast in person at a
meeting called for the purpose of voting on such approval, and
by a vote of the Board of Trustees or of a majority of the
outstanding voting securities of the Portfolio. The aforesaid
requirement that this Agreement may be continued "annually"
shall be construed in a manner consistent with the 1940 Act and
the rules and regulations thereunder.
24. Termination.
a. This Agreement may be terminated at any time by the
Fund (by a vote of the Board of Trustees of the Fund or by a
vote of a majority of the outstanding voting securities of the
Portfolio), without the payment of any penalty, immediately upon
written notice to the other parties hereto, in the event of a
material breach of any provision thereof by the party so
notified or otherwise by the Fund, upon sixty (60) days' written
notice to the other parties hereto, but any such termination
shall not affect the status, obligations or liabilities of any
party hereto to the others.
b. This Agreement may also be terminated by the Adviser
or the Sub-Adviser, without the payment of any penalty
immediately upon written notice to the other parties hereto, in
the event of a material breach of any provision thereof by the
party so notified if such breach shall not have been cured
within a 20-day period after notice of such breach or otherwise
by the Adviser or the Sub-Adviser upon sixty (60) days' written
notice to the other parties hereto, but any such termination
shall not affect the status, obligations or liabilities of any
party hereto to the others.
25. Definitions. As used in this Agreement, the terms
"affiliated person," "assignment," "control," "interested
person," "principal underwriter" and "vote of a majority of the
outstanding voting securities" shall have the meanings set forth
in the 1940 Act and the rules and regulations thereunder,
subject to any applicable orders of exemption issued by the
Securities and Exchange Commission.
26. Notice. Any notice under this Agreement shall be given in
writing addressed and delivered or mailed, postage prepaid, to
the other parties to this Agreement at their principal place of
business.
27. 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.
28. Governing Law. To the extent that state law is not
preempted by the provisions of any law of the United States
heretofore or hereafter enacted, as the same may be amended from
time to time, this Agreement shall be administered, construed
and enforced according to the laws of the State of Delaware.
29. Entire Agreement. This Agreement and the Schedules
attached hereto embodies the entire agreement and understanding
between the parties.
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
on behalf of the Wilmington
International Strategic Allocation Fund
By: /s/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Xxxxx: President
Xxxxxxx Sachs Asset Management, L.P.
By: /s/Xxxxx XxXxxxxx
Name: Xxxxx XxXxxxxx
Title: Managing Director
Xxxxxx Square Management Corporation
By: /s/Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
SCHEDULE A
OPERATING PROCEDURES
From time to time the Adviser shall issue written Operating
Procedures which shall govern reporting of transactions and
other matters so as to facilitate (i) the monitoring of the
Fund's compliance with the restrictions and limitations
applicable to the operations of a registered investment company
and (ii) the preparation of reports to the Board of Trustees,
regulatory authorities and shareholders.
SUBSTANTIVE LIMITATIONS
1. The Sub-Adviser will manage the Portfolio Account as if the
Portfolio Account were a registered investment company subject
to the investment objective, policies and limitations applicable
to the Portfolio stated in the Fund's Prospectus and Statement
of Additional Information, as from time to time in effect,
included in the Fund's registration statement or a supplement
thereto under the Securities Act of 1933 and the Investment
Company Act of 1940 (the "1940 Act"), as each may be amended
from time to time; provided, however, that if a more stringent
restriction or limitation than any of the foregoing is stated in
Section 2 of this Schedule, the more stringent restriction or
limitation shall apply to the Portfolio Account.
2. The Sub-Adviser shall not, without the written approval of
the Adviser, on behalf of the Portfolio Account:
a. purchase securities of any issuer if such purchase
would cause more than 10% of the voting securities of such
issuer to be held in the Portfolio Account (1940 Act 5(b)(1);
IRC? 851(b)(4)(a)(ii));
b. purchase securities if such purchase would cause:
i. more than 3% of the outstanding voting stock of
any other investment company to be held in the Portfolio Account
(1940 Act 12(d)(1)(A)(i)),
ii. securities issued by any other investment company
having an aggregate value in excess of 5 % of the value of the
total assets in the Portfolio Account to be held in the
Portfolio Account (1940 Act 12(d)(1)(A)(ii)),
iii. securities issued by all other investment
companies (other than Treasury Stock) having an aggregate value
in excess of 10% of the value of the total assets of the
Portfolio Account to be held in the Portfolio Account (1940 Act
12(d)(1)(A)(iii)),
iv. more than 10% of the outstanding voting stock of
any registered closed-end investment company to be held in the
Portfolio Account, and by any other investment company having as
its investment adviser any of the Sub-Advisers, the Adviser, or
any other investment adviser to the Fund (1940 Act 12(d)(1)(C));
c. purchase securities of any insurance company if such
purchase would cause more than 10% of the outstanding voting
securities of any insurance company to be held in the Portfolio
Account (1940 Act 12(d)(2)); or
d. purchase securities of or any interest in any person
who is a broker, a dealer, is engaged in the business of
underwriting, is an investment adviser to an investment company
or is a registered investment adviser under the Investment
Advisers Act of 1940 unless
i. such purchase is of a security of any issuer
that, in its most recent fiscal year, derived 15% or less of its
gross revenues from securities-related activities (1940 Act Rule
12d3-l(a)), or
ii. despite the fact that such purchase is of any
security of any issuer that derived more than 15% of its gross
revenues from securities-related activities:
(1) immediately after the purchase of any equity
security, the Portfolio Account would not own more than 5% of
outstanding securities of that class of the issuer's equity
securities (1940 Act Rule 12d3-1(b)(1));
(2) immediately after the purchase of any debt
security, the Portfolio Account would not own more than 10% of
the outstanding principal amount of the issuer's debt securities
(1940 Act Rule 12d3-1(b)(2)); and
(3) immediately after the purchase, not more
than 5% of the value of the Portfolio Account's total assets
would be invested in the issuer's securities (1940 Act Rule
12d3-1(b)(3)).
3. The Sub-Adviser will manage the Portfolio Account so that
no more than 10% of the gross income of the Portfolio Account is
derived from any source other than dividends, interest, payments
with respect to securities loans (as defined in IRC 512(a)(5)),
and gains from the sale or other disposition of stock or
securities (as defined in the 1940 Act 2(a)(36)) or foreign
currencies, or other income (including, but not limited to,
gains from options, futures, or forward contracts) derived with
respect to the Portfolio's business of investing in such stock,
securities, or currencies (IRC 851(b)(2)).
SCHEDULE B
RECORD KEEPING REQUIREMENTS
Records To Be Maintained by the Sub-Adviser:
1. (Rule 31a-l(b)(5) and (6)). A record of each brokerage
order, and all other portfolio purchases and sales, given by the
Sub-Adviser on behalf of the Portfolio Account for, or in
connection with, the purchase or sale of securities, whether
executed or unexecuted. Such records shall include:
a. the name of the broker;
b. the terms and conditions of the order and of any
modification or cancellation thereof;
c. the time of entry or cancellation;
d. the price at which executed;
e. the time of receipt of a report of execution; and
f. the name of the person who placed the order on behalf
of the Portfolio Account.
2. (Rule 31a-l(b)(9)). A record for each fiscal quarter,
completed within ten (10) days after the end of the quarter,
showing specifically the basis or bases (e.g. execution ability,
execution and research) upon which the allocation of orders for
the purchase and sale of portfolio securities to named brokers
or dealers was effected, and the division of brokerage
commissions or other compensation on such purchase and sale
orders. Such record:
a. shall include the consideration given to:
i. the sale of shares of the Fund by brokers or dealers;
ii. the supplying of services or benefits by brokers
or dealers to:
(1) the Fund,
(2) the Adviser,
(3) the Sub-Adviser, and
(4) any person other than the foregoing; and
iii. any other consideration other than the technical
qualifications of the brokers and dealers as such;
b. shall show the nature of the services or benefits made
available;
c. shall describe in detail the application of any
general or specific formula or other determinant used in
arriving at such allocation of purchase and sale orders and such
division of brokerage commissions or other compensation; and
d. shall show the name of the person responsible for
making the determination of such allocation and such division of
brokerage commissions or other compensation.
3. (Rule 31a-l(b)(10)). A record in the form of an appropriate
memorandum identifying the person or persons, committees or
groups authorizing the purchase or sale of portfolio securities.
Where an authorization is made by a committee or group, a record
shall be kept of the names of its members who participate in the
authorization. There shall be retained as part of this record:
any memorandum, recommendation or instruction supporting or
authorizing the purchase or sale of portfolio securities and
such other information as is appropriate to support the
authorization.?
4. (Rule 31a-1(f)). Such accounts, books and other documents
as are required to be maintained by registered investment
advisers by rule adopted under Section 204 of the Investment
Advisers Act of 1940, to the extent such records are necessary
or appropriate to record the Sub-Adviser's transactions with
respect to the Portfolio Account.
* Internal Revenue Code
* Such information might include: the current Form 10-K, annual
and quarterly reports, press releases, reports by analysts and
from brokerage firms (including their recommendations, i.e., buy,
sell and hold) or any internal reports or portfolio adviser reviews.
