Exhibit(d)(7)
SUB-ADVISORY AGREEMENT
AGREEMENT made this 2nd day of December, 2005, between DEUTSCHE
INVESTMENT MANAGEMENT AMERICAS INC. (the "Adviser") and ABERDEEN ASSET
MANAGEMENT INC. (the "Sub-Adviser").
WHEREAS, Xxxxxxx Portfolio Trust, a Massachusetts business trust (the
"Trust"), is registered as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Adviser has entered into an Amended and Restated
Investment Advisory Agreement dated December 2, 2005 (such agreement and any
successor agreement thereto, the "Advisory Agreement") with the Trust, pursuant
to which the Adviser acts as investment adviser to the Xxxxxxx Income Fund
series of the Trust (the "Fund") and provides certain investment advisory and
other services with respect to the Fund; and
WHEREAS, the Adviser, with the approval of the Trust's Board of
Trustees, including a majority of the Trustees who are not "interested persons,"
as defined in the 1940 Act, desires to retain the Sub-Adviser to provide
investment advisory services in connection with the management of the Fund, and
the Sub-Adviser is willing to render such investment advisory services.
NOW, THEREFORE, the parties hereto agree as follows:
1. Duties of the Sub-Adviser. Subject to supervision and oversight by
the Adviser and the Trust's Board of Trustees, the Sub-Adviser shall manage all
of the securities and other assets of the Fund entrusted to it by the Adviser
hereunder (the "Assets"), including the purchase, retention and disposition of
the Assets, in accordance with the Fund's investment objective(s), policies and
restrictions as stated in the Fund's prospectus and statement of additional
information, as currently in effect and as amended or supplemented from time to
time (referred to collectively as the "Prospectus"), and subject to the
following:
(a) In the performance of its duties and obligations under this
Agreement, the Sub-Adviser shall act in conformity with the Trust's constituent
documents and the Prospectus and with the instructions and directions of the
Adviser and of the Board of Trustees of the Trust and will conform to and comply
with the requirements of the 1940 Act, the Internal Revenue Code of 1986, as
amended (the "Code"), and all other applicable federal and state laws and
regulations, as each is amended from time to time.
(b) The Sub-Adviser shall determine the Assets to be purchased or sold
by the Fund and will place orders with or through only those brokers or dealers
that appear on a list of brokers and dealers approved by the Adviser and made
available to the Sub-Adviser from time to time. The Sub-Adviser will carry out
the policy with respect to brokerage set forth in the Trust's registration
statement and the Prospectus or as the Board of Trustees or the Adviser may
direct from time to time, in conformity with federal securities laws. In
executing portfolio transactions and selecting brokers or dealers, the
Sub-Adviser will use its best efforts to obtain on behalf of the Fund best
execution. In evaluating best execution for any transaction, the Sub-Adviser
shall consider all factors that it deems relevant, including the breadth of the
market in the security, the price of the security, the financial condition and
execution capability of the broker or dealer, and
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the reasonableness of the commission, if any, both for the specific transaction
and on a continuing basis. In evaluating best execution, and in selecting the
broker-dealer to execute a particular transaction, subject to any instructions
and directions of the Adviser or the Board of Trustees, the Sub-Adviser may also
consider the brokerage and research services provided (as those terms are
defined in Section 28(e) of the Securities Exchange Act of 1934). Provided the
Sub-Adviser is acting in accordance with any such instructions and directions of
the Adviser or the Board of Trustees, the Sub-Adviser is authorized to pay to a
broker or dealer who provides such brokerage and research services a commission
for executing a portfolio transaction for the Fund which is in excess of the
amount of commission another broker or dealer would have charged for effecting
that transaction if, but only if, the Sub-Adviser determines in good faith that
such commission was reasonable in relation to the value of the brokerage and
research services provided by such broker or dealer--viewed in terms of that
particular transaction or in terms of the overall responsibilities of the
Sub-Adviser to the Fund. In no instance, however, will the Fund's Assets be
purchased from or sold to the Adviser, the Sub-Adviser, any other sub-adviser of
the Trust or other registered investment companies (or series or portions
thereof) that may be deemed to be under common control, the Trust's principal
underwriter, or any affiliated person of either the Trust, the Adviser, the
Sub-Adviser or any other sub-adviser of the Trust or other registered investment
companies (or series or portions thereof) that may be deemed to be under common
control, or the Trust's principal underwriter, acting as principal in the
transaction, except to the extent permitted by the Securities and Exchange
Commission ("SEC") and the 1940 Act and approved by (or pursuant to procedures
of) the Adviser and the Board of Trustees. The Adviser or its affiliates may,
from time to time, engage other sub-advisers to advise the Fund (or portions
thereof), other series of the Trust (or portions thereof) or other registered
investment companies (or series or portions thereof) that may be deemed to be
under common control (each a "Sub-Advised Fund"). The Sub-Adviser agrees that it
will not consult with any other sub-adviser engaged by the Adviser or its
affiliates with respect to transactions in securities or other assets concerning
the Fund or another Sub-Advised Fund, except to the extent permitted by the
certain exemptive rules under the 1940 Act that permit certain transactions with
a sub-adviser or its affiliates.
On occasions when the Sub-Adviser deems the purchase or sale of a
security to be in the best interests of the Fund 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 most favorable price or lower
brokerage commissions and efficient execution. In such event, allocation of
securities so sold or purchased, as well as the expenses incurred in the
transaction, will be made by the Sub-Adviser in the manner the Sub-Adviser
considers to be the most equitable and consistent with its fiduciary obligations
to the Fund and to such other clients.
The Sub-Adviser may buy securities for the Fund at the same time it is
selling such securities for another client account and may sell securities for
the Fund at the time it is buying such securities for another client account. In
such cases, subject to applicable legal and regulatory requirements, and in
compliance with such procedures of the Trust as may be in effect from time to
time, the Sub-Adviser may effectuate cross transactions between the Fund and
such other account if it deems this to be advantageous to both of the accounts
involved.
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Notwithstanding the foregoing, the Sub-Adviser agrees that the Adviser
shall have the right by written notice to identify securities that may not be
purchased on behalf of the Fund and/or broker-dealers through or with which
portfolio transactions on behalf of the Fund may not be effected. The
Sub-Adviser shall refrain from purchasing such securities for the Fund or
directing any portfolio transaction to any such broker-dealer on behalf of the
Fund, unless and until the written approval of the Adviser or the Board of
Trustees, as the case may be, is so obtained.
(c) The Sub-Adviser shall maintain all books and records with respect
to transactions involving the Assets required by applicable law. The Sub-Adviser
shall keep the Adviser informed of developments materially affecting the Fund or
the Trust. The Sub-Adviser shall provide to the Adviser or the Board of Trustees
such periodic and special reports, balance sheets or financial information, and
such other information with regard to its affairs as the Adviser or Board of
Trustees may reasonably request.
The Sub-Adviser shall keep the books and records relating to the Assets
required to be maintained by the Sub-Adviser under this Agreement and shall
timely furnish to the Adviser all information relating to the Sub-Adviser's
services under this Agreement needed by the Adviser to keep the other books and
records of the Fund required by applicable law. The Sub-Adviser shall also
furnish to the Adviser any other information relating to the Assets that is
required to be filed by the Adviser or the Trust with the SEC or sent to
shareholders under the 1933 Act or 1940 Act (including the rules adopted
thereunder) or any exemptive or other relief that the Adviser or the Trust
obtains from the SEC. The Sub-Adviser agrees that all records that it maintains
on behalf of the Fund are the property of the Fund and the Sub-Adviser will
surrender promptly to the Fund any of such records upon the Fund's request;
provided, however, that the Sub-Adviser may retain a copy of such records. The
Sub-Adviser agrees to permit the Adviser, the Trust's officers and the Fund's
independent registered public accounting firm to inspect and audit such records
pertaining to the Fund at reasonable times during regular business hours upon
due notice. In addition, for the duration of this Agreement, the Sub-Adviser
shall preserve for the periods prescribed by Rule 31a-2 under the 1940 Act, and
Rule 204-2 under the Investment Advisers Act of 1940, as amended (the "Advisers
Act"), any such records as are required to be maintained by it pursuant to this
Agreement, and shall transfer said records to any successor sub-adviser and to
the Adviser upon the termination of this Agreement at the Fund's request. The
Sub-Adviser shall maintain and enforce adequate security procedures with respect
to all materials, records, documents and data relating to any of its
responsibilities under this Agreement including all means for the effecting of
securities transactions.
(d) The Sub-Adviser will also make its officers and employees available
to meet with the officers of the Adviser and the Trust's officers and Trustees
on due notice to review the investments and investment program of the Fund in
the light of current and prospective economic and market conditions. In
addition, the Sub-Adviser shall, on the Sub-Adviser's own initiative, and as
reasonably requested by the Adviser, for itself and on behalf of the Trust,
furnish to the Adviser from time to time whatever information the Adviser
reasonably believes appropriate for this purpose. From time to time as the Board
of Trustees of the Trust or the Adviser may reasonably request, the Sub-Adviser
will furnish to the Adviser and Trust's officers and to each of its Trustees, at
the Sub-Adviser's expense, reports on portfolio transactions and
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reports on issuers of securities held by the Fund, all in such detail as the
Trust or the Adviser may reasonably request. In addition, the Sub-Adviser shall
provide advice and assistance to the Adviser as to the determination of the
value of securities held or to be acquired by the Fund for valuation purposes in
accordance with the process described in the Fund's Prospectus and valuation
procedures. The Sub-Adviser will make its officers and employees available to
meet with the officers of the Adviser and the Trust's officers and Trustees and
provide such information as the Board of Trustees and the Adviser reasonably
believe appropriate for purposes of the Board's consideration of this Agreement
and any continuations thereof, including information about the profitability to
the Sub-Adviser of providing advisory services hereunder.
(e) The Sub-Adviser shall provide the Fund's custodian on each business
day with information relating to all transactions concerning the Fund's Assets,
including the name of the issuer, the description and amount or number of shares
of the security purchased or sold, the market price, commission and gross or net
price, trade date, settlement date and identity of the effecting broker or
dealer, and such other information as may be reasonably required. The
Sub-Adviser shall also provide the Adviser with such information upon request of
the Adviser. The Sub-Adviser shall provide such sub-certifications as officers
of the Adviser or the Trust may reasonably request in connection with the
filings of Form N-CSR or Form N-Q (or any similar form) by the Trust.
(f) In the performance of its duties hereunder, the Sub-Adviser is and
shall be an independent contractor and, except as expressly provided for herein
or otherwise expressly provided or authorized in writing by the Adviser, shall
have no authority to act for or represent the Fund or the Trust in any way or
otherwise be deemed to be an agent of the Fund, the Trust or the Adviser. If any
occasion should arise in which the Sub-Adviser gives any advice to its clients
concerning the shares of the Fund, the Sub-Adviser will act solely as investment
counsel for such clients and not in any way on behalf of the Fund. The
Sub-Adviser's services to the Fund pursuant to this Agreement are not to be
deemed to be exclusive, and it is understood that the Sub-Adviser may render
investment advice, management and other services to other investment companies
and clients.
(g) The Sub-Adviser shall vote proxies and take corporate action
elections with respect to securities held by the Fund in accordance with
guidelines established by the Adviser and approved by the Board of Trustees.
(h) Subject to obtaining the initial and periodic approvals required
under Section 15 of the 1940 Act and the approval of the Adviser, the
Sub-Adviser may retain one or more additional sub-advisers at the Sub-Adviser's
own cost and expense for the purpose of furnishing one or more of the services
described in this section with respect to the Fund. Retention of a sub-adviser
hereunder shall in no way reduce the responsibilities or obligations of the
Sub-Adviser under this Agreement and the Sub-Adviser shall be responsible to the
Fund for all acts or omissions of any sub-adviser in connection with the
performance of the Sub-Adviser's duties hereunder.
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(i) Without further verification or inquiry by the Sub-Adviser, the
Sub-Adviser is authorized to rely on instructions or directions provided by (1)
the Board of Trustees, officers of the Fund and portfolio managers named in the
Fund's currently effective Prospectus who are employees of the Adviser; and (2)
other persons designated by the Adviser and identified to the Sub-Adviser as
"Authorized Persons" pursuant to this Agreement, provided that instructions or
directions provided pursuant to this Section 1(i)(2) are provided in writing
(which may include e-mail or facsimile transmissions).
2. Duties of the Adviser. The Adviser shall continue to have
responsibility for all services to be provided to the Fund pursuant to the
Advisory Agreement and shall supervise and oversee the Sub-Adviser's performance
of its duties under this Agreement; provided, however, that in connection with
its management of the Assets, nothing herein shall be construed to relieve the
Sub-Adviser of responsibility for compliance with the Trust's constituent
documents, the Prospectus, the instructions and directions provided pursuant to
Section 1(i) of this Agreement, the requirements of the 1940 Act, the Code, and
all other applicable federal and state laws and regulations, as each is amended
from time to time.
3. Delivery of Documents.
(a) The Adviser has furnished the Sub-Adviser with copies properly
certified or authenticated of each of the following documents:
(i) The Trust's Amended and Restated Declaration of Trust, as
in effect on the date of this Agreement and as amended from time to
time (herein called the "Declaration of Trust");
(ii) By-Laws of the Trust; and (iii) Prospectus of the Fund.
(b) The Sub-Adviser has furnished the Adviser with copies properly
certified or authenticated of each of the following documents:
(i) The Sub-Adviser's most recent audited financial
statements;
(ii) An organizational chart showing public companies and
registered broker-dealers affiliated with the Sub-Adviser;
(iii) The Sub-Adviser's Form ADV; and
(iv) The Sub-Adviser's Code of Ethics adopted pursuant to Rule
17j-1 under the 1940 Act.
4. Certain Representations and Warranties of the Sub-Adviser.
(a) The Sub-Adviser represents and warrants that it is a duly
registered investment adviser under the Advisers Act, is a duly registered
investment adviser in any and all states of the United States in which the
Sub-Adviser is required to be so registered and has obtained all
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necessary licenses and approvals in order to perform the services provided in
this Agreement. The Sub-Adviser covenants to maintain all necessary
registrations, licenses and approvals in effect during the term of this
Agreement.
(b) The Sub-Adviser represents that it has read and understands the
Prospectus and warrants that in investing the Assets it will use all reasonable
efforts to adhere to the Fund's investment objective(s), policies and
restrictions contained therein.
(c) The Sub-Adviser represents that it will provide the Fund with any
amendments to its Code of Ethics and any certifications required by Rule 17j-1
under the 1940 Act. The Sub-Adviser represents that it has policies and
procedures regarding the detection and prevention and the misuse of material,
nonpublic information by the Sub-Adviser and its employees as required by the
Xxxxxxx Xxxxxxx and Securities Fraud Enforcement Act of 1988.
(d) The Sub-Adviser represents that, as of the date of this Agreement
(which representation shall be confirmed periodically thereafter), (1) neither
it nor any of its "affiliated persons" (as defined in the 0000 Xxx) are
affiliated persons of: (i) the Adviser; (ii) any other sub-adviser to the Fund
or the Trust or any affiliated person of that sub-adviser; (iii) any promoter,
underwriter, officer, board member, member of an advisory board, or employee of
the Fund or the Trust; or (iv) the Fund (other than by reason of serving as an
investment adviser to the Fund); and (2) to the best knowledge of the
Sub-Adviser, neither the Adviser nor any of its directors or officers directly
or indirectly owns any material interest in the Sub-Adviser other than an
interest through ownership of shares of a pooled investment vehicle that is not
controlled by such person (or entity). The Sub-Adviser agrees to promptly notify
the Adviser if it or any of its affiliated persons becomes an affiliated person
of any of the persons set forth in (i) to (iv).
(e) The Sub-Adviser represents and warrants that it will maintain
written policies and procedures that are reasonably designed to prevent
violation of Federal Securities Laws as defined in Rule 38a-1 under the 1940 Act
and that are otherwise in compliance with Rule 206(4)-7 under the Advisers Act.
The Sub-Adviser agrees to provide the Fund and the Adviser, from time to time,
with copies of such policies and procedures, summaries thereof and
certifications with respect thereto. The Sub-Adviser agrees to cooperate with
the Trust's Chief Compliance Officer in providing information to fulfill the
requirements of Rule 38a-1 under the 1940 Act as interpreted by the SEC or the
Board of Trustees.
5. Compliance.
(a) The Sub-Adviser agrees that it shall promptly notify the Adviser
and the Trust: (i) in the event that the SEC or any other regulatory authority
has censured its activities, functions or operations; suspended or revoked its
registration as an investment adviser; or has commenced proceedings or an
investigation that may result in any of these actions; (ii) of the occurrence of
any event that could disqualify the Sub-Adviser from serving as an investment
adviser pursuant to Section 9 of the 1940 Act; (iii) in the event that there is
a change in the Sub-Adviser, financial or otherwise, that adversely affects its
ability to perform services under this Agreement; or (iv) upon having a
reasonable basis for believing that, as a result of the Sub-Adviser's investing
the Assets, the Fund's investment portfolio has ceased to adhere to the Fund's
investment
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objective(s), policies or restrictions as stated in the Prospectus or is
otherwise in violation of applicable law.
(b) The Adviser agrees that it shall promptly notify the Sub-Adviser:
(i) in the event that the SEC has censured the Adviser or the Trust; placed
limitations upon any of their activities, functions or operations; suspended or
revoked the Adviser's registration as an investment adviser; or has commenced
proceedings or an investigation that may result in any of these actions; (ii) of
the occurrence of any event that could disqualify the Adviser from serving as an
investment adviser pursuant to Section 9 of the 1940 Act; or (iii) in the event
that there is a change in the Adviser, financial or otherwise, that adversely
affects its ability to perform services under this Agreement.
(c) The Sub-Adviser shall immediately forward, upon receipt, to the
Adviser any correspondence from the SEC or other regulatory authority that
relates to the Fund or the Adviser generally, including SEC inspection reports.
(d) The Trust and the Adviser shall be given access to any and all
records or other documents of the Sub-Adviser at reasonable times solely for the
purpose of monitoring compliance with the terms of this Agreement and the rules
and regulations applicable to the Sub-Adviser relating to its providing
investment advisory services to the Fund, including without limitation records
relating to trading by employees of the Sub-Adviser for their own accounts and
on behalf of other clients. The Sub-Adviser agrees to promptly cooperate with
the Trust and the Adviser and their representatives in connection with requests
for such records or other documents.
6. Compensation to the Sub-Adviser.
(a) For the services to be provided by the Sub-Adviser pursuant to this
Agreement, the Adviser will pay the Sub-Adviser, and the Sub-Adviser agrees to
accept, a sub-advisory fee at the rate specified in Appendix A which is attached
hereto and made part of this Agreement. The fee will be computed daily based on
the average daily net assets of the Fund and will be paid to the Sub-Adviser
monthly.
(b) For purposes of this Section 6, the value of net assets of the Fund
shall be computed as required by the 1940 Act and in accordance with any
procedures approved by the Board of Trustees for the computation of the value of
the net assets of the Fund in connection with the determination of net asset
value of its shares.
7. Expenses. The Sub-Adviser shall bear all expenses (excluding
brokerage costs, custodian fees, fees of independent registered public
accounting firms or other expenses of the Fund to be borne by the Fund or the
Trust) in connection with the performance of its services under this Agreement.
The Fund will bear certain other expenses to be incurred in its operation,
including, but not limited to, investment advisory fees, sub-advisory fees
(other than sub-advisory fees paid pursuant to this Agreement) and
administration fees; fees for necessary professional and brokerage services to
the Fund; costs relating to local administration of securities; fees for any
pricing service; the costs of the Fund's regulatory compliance (other than costs
primarily relating to the Adviser's or Sub-Adviser's regulatory compliance); and
pro rata
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costs associated with maintaining the Trust's legal existence and shareholder
relations. All other Fund operating expenses not specifically assumed by the
Sub-Adviser hereunder or by the Adviser are borne by the Fund or the Trust.
8. Standard of Care and Liability of Sub-Adviser. The Sub-Adviser shall
not be liable for any error of judgment or mistake of law or for any loss
suffered by the Fund in connection with the matters to which this Agreement
relates, except that nothing herein contained will be construed to protect the
Sub-Adviser against any liability to the Adviser, the Fund or its shareholders
by reason of: (a) the Sub-Adviser's causing the Fund to be in violation of any
applicable federal or state law, rule or regulation or any investment policy or
restriction set forth in the Prospectus or any written guidelines, policies or
instruction provided in writing by the Trust's Board of Trustees or the Adviser
or (b) the Sub-Adviser's willful misfeasance, bad faith or gross negligence in
the performance of its duties hereunder or its reckless disregard of its
obligations and duties under this Agreement.
9. Disclosure Regarding the Sub-Adviser.
(a) The Sub-Adviser has reviewed the disclosure about the Sub-Adviser
and its management of the Fund contained in the Trust's proxy statement,
registration statement and Prospectus and represents and warrants that, with
respect to such disclosure about the Sub-Adviser or information related,
directly or indirectly, to the Sub-Adviser, such documents contain, as of the
date hereof, no untrue statement of any material fact and do not omit any
statement of a material fact which is required to be stated therein or necessary
to make the statements contained therein not misleading.
(b) The Sub-Adviser agrees to notify the Adviser and the Trust promptly
of: (i) any statement about the Sub-Adviser or its management of the Fund
contained in the Trust's proxy statement, registration statement or Prospectus
that becomes untrue in any material respect, (ii) any omission of a material
fact about the Sub-Adviser or its management of the Fund in such documents which
is required to be stated therein or necessary to make the statements contained
therein not misleading, or (iii) any reorganization or change in the
Sub-Adviser, including any change in its ownership or key employees, including
portfolio managers to the Fund who are employees of the Sub-Adviser.
10. Insurance. The Sub-Adviser shall maintain for the duration hereof,
with an insurer acceptable to the Adviser, a blanket bond and professional
liability or errors and omissions insurance in an amount or amounts deemed by
the Sub-Adviser in its sole discretion to be sufficient to meet its obligations
to its clients, including the Fund.
11. Duration and Termination.
(a) This Agreement shall become effective with respect to the Fund on
December 2, 2005, and shall remain in full force for a period of two years from
such date and from year to year thereafter, but only as long as such continuance
is specifically approved at least annually and in the manner required by the
1940 Act. The requirement that continuance of this Agreement be "specifically
approved at least annually" shall be construed in a manner consistent with the
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1940 Act and the rules and regulations thereunder and any applicable SEC
exemptive order therefrom.
(b) This Agreement shall automatically terminate in the event of its
assignment or in the event of the termination of the Advisory Agreement. In
addition, the Adviser has the right to terminate this Agreement upon immediate
notice if the Sub-Adviser becomes statutorily disqualified from performing its
duties under this Agreement or otherwise is legally prohibited from operating as
an investment adviser.
(c) If a party breaches this Agreement in any material respect which is
not cured within sixty (60) days of the other party giving it written notice of
such breach, the other party may effect termination of this Agreement on written
notice to the defaulting party.
(d) This Agreement may be terminated at any time, without the payment
by the Fund of any penalty, by the Board of Trustees of the Trust, or by vote of
a majority of the outstanding voting securities of the Fund, or by the Adviser.
The Fund may effect termination of this Agreement by action of the Board of
Trustees of the Trust or by vote of a majority of the outstanding voting
securities of the Fund on sixty (60) days' written notice to the Adviser and the
Sub-Adviser. The Adviser may effect termination of this Agreement on sixty (60)
days' written notice to the Sub-Adviser.
(e) The Sub-Adviser may terminate this Agreement upon ninety (90) days'
written notice to the Adviser.
(f) Termination of this Agreement shall not affect the right of the
Sub-Adviser to receive payments on any unpaid balance of the compensation
described in Section 6 earned prior to such termination.
12. Confidentiality.
(a) Each party agrees that it shall hold in strict confidence all data
and information obtained from another party hereto or the Trust (unless such
information is or becomes readily ascertainable from public or published
information or trade sources) and shall ensure that its officers, employees and
authorized representatives do not disclose such information to others without
the prior written consent of the party from whom it was obtained, unless such
disclosure is required by the SEC, other regulatory body with applicable
jurisdiction, or the Trust's independent registered public accounting firm, or
in the opinion of its counsel, applicable law, and then only with as much prior
written notice to the other party as is practicable under the circumstances.
(b) The Adviser, on behalf of the Fund, has legitimate business reasons
to disclose to the Sub-Adviser certain non-public portfolio holdings information
of the Fund ("Holdings Information") from time to time. The Sub-Adviser agrees
that it:
(i) Will use the Holdings Information exclusively for purposes
of providing services pursuant to this Agreement that may benefit the
Fund;
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(ii) Will not engage in any fraudulent, competitive or
improper behavior based on the Holdings Information that may
disadvantage the Fund, including disclosing, trading or making
investment recommendations based on the Holdings Information to or for
any party other than the Fund as provided in this Agreement;
(iii) Will treat the Holdings Information as confidential and
will not disclose such information to any party other than as required
to perform the services under this Agreement. This clause shall not
apply to the extent that: (1) the Holdings Information is publicly
known, (2) the Holdings Information is or becomes legally known to the
Sub-Adviser other than through disclosure by the Fund, the Adviser, an
affiliated person of the Fund or the Adviser or by another party bound
by an obligation of confidentiality to the Fund, or (3) the disclosure
is required by law or requested by any regulatory authority or required
by statute, rule, regulation, subpoena, regulatory examination request
or court order, provided, however, that the Sub-Adviser will not make
any such disclosure without first notifying the Adviser and the Fund
and allowing the Adviser or the Fund a reasonable opportunity to seek
injunctive relief (or a protective order) with respect to the
obligation to make such disclosure; and
(iv) Will notify the Adviser if the Sub-Adviser has any
knowledge of the Holdings Information having been misused, including in
violation of this Agreement.
13. Use of Names. The Sub-Adviser acknowledges and agrees that the
name Xxxxxxx (whether used by itself or in combination with other words), and
abbreviations or logos associated with that name, are the valuable property of
the Adviser and its affiliates; that the Trust, the Adviser and their affiliates
have the right to use such name, abbreviations and logos; and that the
Sub-Adviser shall use the name Xxxxxxx, and associated abbreviations and logos,
only in connection with the Sub-Adviser's performance of its duties hereunder.
Further, in any communication with the public and in any marketing
communications of any sort, the Sub-Adviser agrees to obtain prior written
approval from the Adviser before using or referring to Xxxxxxx, or Xxxxxxx
Income Fund or any abbreviations or logos associated with those names; provided
that nothing herein shall be deemed to prohibit the Sub-Adviser from referring
to the performance of the Fund in the Sub-Adviser's marketing material as long
as such marketing material does not constitute "sales literature" or
"advertising" for the Fund, as those terms are used in the rules, regulations
and guidelines of the SEC and the National Association of Securities Dealers,
Inc.
14. Governing Law. This Agreement shall be governed by the laws of the
State of New York, without regard to conflict of law principles.
15. Severability. Should any part of this Agreement be held invalid by
a court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors.
16. Notice. Any notice, advice or report to be given pursuant to this
Agreement shall be deemed sufficient if delivered or mailed by registered,
certified or overnight
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mail, postage prepaid addressed by the party giving notice to the other party at
the last address furnished by the other party:
To the Adviser: A. Xxxxxx Xxxxx, Esq.
Managing Director
Global Head Asset Management Legal
Deutsche Investment Management Americas Inc.
Floor 27
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
and with a copy (which shall not constitute notice) to:
Xx. Xxxxxxx X. Xxxxxxxx
Managing Director
Head of Product Development & Implementation
Deutsche Investment Management Americas Inc.
Floor 27
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
To the Sub-Adviser at: Xx. Xxxxxxxxx Xxxxxxx
Chief Executive Officer
Aberdeen Asset Management Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
17. Questions of Interpretation. Any question of interpretation of any
term or provision of this Agreement having a counterpart in or otherwise derived
from a term or provision of the 1940 Act shall be resolved by reference to such
term or provision of the 1940 Act and to interpretations thereof, if any, by the
United States Courts or in the absence of any controlling decision of any such
court, by rules, regulations or orders of the SEC issued pursuant to the 1940
Act. Specifically, the terms "vote of a majority of the outstanding voting
securities," "interested person," "control," "assignment" and "affiliated
person," as used in this Agreement, shall have the meanings assigned to them by
Section 2(a) of the 1940 Act. In addition, where the effect of a requirement of
the 1940 Act reflected in any provision of this Agreement is modified or
interpreted by any applicable order or orders of the SEC or any rules or
regulations adopted by, or interpretative releases of, the SEC thereunder, such
provision shall be deemed to incorporate the effect of such order, rule,
regulation or interpretative release.
18. Entire Agreement. This Agreement states the entire agreement of the
parties hereto, and is intended to be the complete and exclusive statement of
the terms hereof. It may not be added to or changed orally, and may not be
modified or rescinded, except by a writing signed by the parties hereto and in
accordance with the 1940 Act or pursuant to applicable orders or interpretations
of the SEC.
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19. Miscellaneous. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
A copy of the Trust's Declaration of Trust is on file with the
Secretary of The Commonwealth of Massachusetts, and notice is hereby given that
the obligations of this instrument are not binding upon any of the Trustees,
officers or shareholders of the Fund or the Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their officers designated below as of the day and year first written above.
DEUTSCHE INVESTMENT MANAGEMENT ABERDEEN ASSET MANAGEMENT INC.
AMERICAS INC.
By: /s/A. Xxxxxx Xxxxx By: /s/Xxxxxxxxx Xxxxxxx
------------------------------------------- -----------------------------------------
Name: A. Xxxxxx Xxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Secretary and Chief Legal Officer Title: Chief Executive Officer
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Appendix A
to the
Sub-Advisory Agreement
between
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
and
ABERDEEN ASSET MANAGEMENT INC.
Pursuant to Section 6, the Adviser shall pay the Sub-Adviser compensation at an
annual rate as follows:
Xxxxxxx Income Fund 0.33% of average daily net assets
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