RYDEX FUNDS PARTICIPATION AGREEMENT
THIS AGREEMENT, dated as of July 17, 2006, between WT Mutual Fund (the
"Company"), a Delaware statutory trust organized under the laws of the State of
Delaware, on behalf of itself or its separate series listed on Schedule A,
severally and not jointly (each an "Investing Fund"), and Rydex ETF Trust, a
statutory trust organized under the laws of the State of Delaware on behalf of
their separate series, severally and not jointly (each a "Rydex Fund" and
collectively the "Rydex Funds").
WHEREAS, the Company and the Rydex Funds each are registered with the U.S.
Securities and Exchange Commission ("SEC") as open-end management investment
companies under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, section 12(d)(1)(A) and (B) of the 1940 Act limits the ability of
an investment company to invest in shares of another investment company, and
therefore limits the ability of an Investing Fund to invest in shares of a Rydex
Fund;
WHEREAS, Rydex ETF Trust, on behalf of each Rydex ETF, have obtained an
order from the SEC dated January 4, 2006 (the "Rydex Order"), amending a prior
Rydex Series Trust and Rydex Dynamic Trust order dated October 31, 2000, that
permits registered investment companies to invest in the Rydex Funds in excess
of the limits set forth in section 12(d)(1)(A) and (B) in accordance with the
conditions of the Rydex Order and the representations in the application filed
to obtain such Order (the "Rydex Application"); and
WHEREAS, an Investing Fund may, from time to time, invest in shares of one
or more Rydex Funds in excess of the limitations of section 12(d)(1)(A) and (B)
in reliance on the Rydex Order;
NOW THEREFORE, in consideration of the potential benefits to the Investing
Funds and the Rydex Funds arising out of the Investing Funds' investment in
Rydex Funds, the parties agree as follows.
1. REPRESENTATIONS AND OBLIGATIONS OF THE RYDEX FUNDS.
(a) The Rydex Funds have provided to the Company a copy of the Rydex
Order and the related SEC Notice of Application for such Order. The
Rydex Funds will promptly provide the Company with (i) a copy of any
amendments to the Rydex Order, and (ii) a copy of the Rydex
Application upon request.
(b) In connection with any investment by an Investing Fund in a
Rydex Fund, the Rydex Fund agrees (i) to comply with the terms and
conditions of the Rydex Order and this Agreement, and (ii) to
promptly notify the Company if such Rydex Fund fails to comply with
the terms and conditions of the Rydex Order or this Agreement.
2. REPRESENTATIONS AND OBLIGATIONS OF THE COMPANY.
(a) Pursuant to Condition 8 of the Rydex Order, the Company
represents that the board of trustees of the Company and each
Investing Fund's advisor understand the terms and
conditions of the Rydex Order and that each agrees to fulfill its
responsibilities under the Rydex Order.
(b) Pursuant to Condition 8 of the Rydex Order, the Company will
promptly notify the Rydex Funds in writing at the time of any
investment by an Investing Fund in a Rydex Fund in excess of the 3%
limit in Section 12(d)(1)(A)(i) and send the Rydex Fund a list of
the names of the Company's affiliates (the Company also must notify
the Rydex Fund of any changes to the list as soon as reasonably
practicable).
(c) To the extent the Investing Funds, in the aggregate, hold 25% or
more of the total outstanding voting securities of a Rydex Fund, the
Company agrees to vote the Investing Funds' shares in the same
proportion as the vote of all other holders of shares of such Rydex
Fund.
(d) The Company: (i) acknowledges that it has received a copy of the
Rydex Order and the related SEC Notice of Application for such
Order; (ii) agrees to adhere to the terms and conditions of the
Rydex Order and this Agreement and to participate in the proposed
transactions in a manner that addresses the concerns underlying the
Rydex Order; (iii) represents that investments in the Rydex Funds
will be accomplished in compliance with its investment restrictions
and will be consistent with the investment policies set forth in its
registration statement; (iv) acknowledges that it may rely on the
Rydex Order only to invest in Rydex Funds and not in any other
investment company; and (v) agrees to promptly notify the Rydex
Funds if it fails to comply with the Rydex Order or this Agreement.
3. INDEMNIFICATION.
Each Investing Fund agrees to hold harmless and indemnify the Rydex
Funds, including any principals, trustees, officers, employees and
agents, against and from any and all losses, expenses or liabilities
incurred by or claims or actions ("Claims") asserted against the
Rydex Funds, including any principals, directors or trustees,
officers, employees and agents, to the extent such Claims result
from (i) a violation or alleged violation by the Investing Fund of
any provision of this Agreement or (ii) a violation or alleged
violation by the Investing Fund of the terms and conditions of the
Rydex Order, such indemnification to include any reasonable counsel
fees and expenses incurred in connection with investigating and/or
defending such Claims.
The Rydex Funds agree to hold harmless and indemnify the Company,
including any directors or trustees, officers, employees and agents,
against and from any Claims asserted against the Company, including
any directors or trustees, officers, employees and agents, to the
extent such Claims result from (i) a violation or alleged violation
by the Rydex Fund of any provision of this Agreement or (ii) a
violation or alleged violation by the Rydex Fund of the terms and
conditions of the Rydex Order, such indemnification to include any
reasonable counsel fees and expenses incurred in connection with
investigating and/or defending such Claims.
4. MATERIALS.
To the extent the Company, on behalf of an Investing Fund, refers to
one or more Rydex Funds in any prospectus, statement of additional
information or otherwise, the Company
2
agrees to refer to the Rydex Fund as, for example, the "Rydex [Index
Name] [ETF]."
5. NOTICES.
All notices, including all information that either party is required
to provide under the terms of this Agreement and the terms and
conditions of the Rydex Order, shall be in writing and shall be
delivered by registered or overnight mail, facsimile, or electronic
mail to the address for each party specified below (which address
may be changed from time to time by written notice to the other
party).
If to the Company:
Company Name: WT Mutual Fund
Address: Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
If to the Rydex Funds:
Rydex ETF Trust
c/o Rydex Investments
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
6. TERMINATION; GOVERNING LAW.
(a) This Agreement will continue until terminated in writing by
either party upon sixty (60) days' notice to the other party,
provided, however, that the obligation of an Investing Fund in
Section 2(d) above shall survive the termination of this Agreement.
This Agreement may not be assigned by either party without the prior
written consent of the other.
(b) This Agreement will be governed by Delaware law without regard
to choice of law principles.
3
7. COMPANY LIABILITY.
The Rydex Funds acknowledge and agree that the obligations of the
Company entered into in the name or on behalf thereof by any of the
trustees, officers, representatives or agents are made not
individually, but in such capacities, and are not binding upon any
of the trustees, officers, shareholders or representatives of the
Company personally, but bind only the Company's property. The Rydex
Funds further acknowledge and agree that all persons dealing with
the Company must look solely to the property belonging to the
Company for the enforcement of any claims against the Company. The
Rydex Funds specifically acknowledges and agrees that any liability
of the Company under this Agreement with respect to an Investing
Fund, or in connection with the transactions contemplated herein
with respect to an Investing Fund, shall be discharged only out of
the assets of such Investing Fund and that no other series of a
Company shall be liable with respect thereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WT MUTUAL FUND, on behalf of each of the Funds
listed on Schedule A, severally and not jointly
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and Treasurer
RYDEX ETF TRUST., on
behalf of each of its series
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President
4
SCHEDULE A
LIST OF FUNDS
Wilmington Multi-Manager Large-Cap Fund
Wilmington Multi-Manager Mid-Cap Fund
Wilmington Multi-Manager Small-Cap Fund
Wilmington Multi-Manager International Fund
Wilmington Multi-Manager Real Asset Fund
Wilmington ETF Allocation Fund