FIRST UNION NATIONAL BANK OF NORTH CAROLINA
000 XXXXX XXXXXXX XXXXXX
XXXXXXXXX, N C 28288
SUBADVISORY AGREEMENT
This AGREEMENT is made and entered into on this 1st day of October,
1996, between FIRST UNION NATIONAL BANK OF NORTH CAROLINA (the "Adviser"), a
National Banking Association, and WARBURG, XXXXXX COUNSELLORS, INC. (the
"Subadviser"), a Delaware corporation registered under the Investment Advisers
Act of 1940, as amended (the "Advisers Act").
WITNESSETH
WHEREAS, Evergreen Investment Trust (the "Trust") is registered with
the Securities and Exchange Commission (the "SEC") as an open-end management
investment company under the Investment Act of 1940, as amended (the "1940
Act");
WHEREAS, the Adviser has, pursuant to an Investment Advisory Agreement
with the Trust dated as of July 28, 1994 ( the "Advisory Agreement "), been
retained to act as investment adviser for the Evergreen International Equity
Fund (the "Fund"), one of the Trust's portfolios;
WHEREAS, the Advisory Agreement permits the Adviser to delegate certain
of its duties under the Advisory Agreement to other investment advisers, subject
to the requirements of the 1940 Act; and
WHEREAS, the Adviser desires to retain the Subadviser to assist it in
the provision of a continuous investment program for the assets of the Fund (the
"Subadviser Assets"), and the Subadviser is willing to render such services
subject to the terms and conditions set forth in this Agreement.
Now, THEREFORE, the parties do mutually agree and promise as follows:
1. Investment Description: Appointment as Subadviser. The Fund desires
to employ its capital by investing and reinvesting in securities of the kind and
in accordance with the limitations specified in the Trust's Declaration of Trust
and By-Laws, as may be amended from time to time (the "Charter Documents"), and
in its Prospectus and Statement of Additional Information, as may be in effect
from time to time (collectively, the "Prospectus") and which are filed with the
SEC as part of the Trust's Registration Statement on Form N-1A, as amended from
time to time, and in such manner and to such extent as may be approved by the
Board of Trustees of the Trust. Copies of the Prospectus and Charter Documents,
each as currently in effect, have been or will be submitted to the Subadviser.
The Adviser hereby retains the Subadviser to act as investment adviser for and
to manage the Subadviser Assets subject to this Agreement; and the Subadviser
hereby accepts such employment. In such capacity, the Subadviser shall be
responsible for the
investment management of the Subadviser Assets. It is recognized that the
Subadviser now acts, and that from time to time hereafter may act, as investment
adviser to one or more other investment companies and to fiduciary or other
managed accounts and that the Adviser and the Trust have no objection to such
activities so long as the services rendered hereunder are not impaired.
2. Duties of Subadviser.
(a) Investments. The Subadviser is hereby authorized and directed and
hereby agrees, subject to the stated investment policies and restrictions of the
Fund as set forth in the Prospectus and subject to the directions of the Adviser
and the Trust's Board of Trustees, to purchase, hold and sell Subadviser Assets
("Fund Investments") and to monitor on a continuous basis the performance of
such Fund Investment. Subject to the supervision of the Board of Trustees and
the Adviser, the Subadviser will: (1) manage the Subadviser Assets in accordance
with the Fund's investment objective, policies and limitations as stated in the
Prospectus and the Charter Documents and as the objective, policies and
limitations apply to the Subadviser Assets and in compliance with the 1940 Act
and the Advisers Act; (2) make investment decisions for the Fund; (3) place
purchase and sale orders for portfolio transactions for the Fund; and (4) manage
otherwise uninvested cash assets included in the Subadviser Assets. In providing
these services, the Subadviser will conduct a continual program of investment,
evaluation and, if appropriate, sale and re-investment of the Subadviser Assets.
The Adviser agrees to provide to the Subadviser such assistance as may be
reasonably requested by the Subadviser in connection with its activities under
this Agreement, including, without limitation, information concerning the Fund,
its funds available, or to become available, for investment and generally as to
the conditions of the Fund's affairs.
(b) Compliance with Applicable Laws and Governing Documents. In the
performance of its duties and obligations under this Agreement, the Subadviser
shall act in conformity with the Trust's Charter Documents and the Prospectus
and with the instructions and directions received in writing from the Adviser or
the Board of Trustees of the Trust and will act in conformity with the
requirements of the 1940 Act, the Internal Revenue Code of 1986, as amended (the
"Code") (including the requirements for qualification as a regulated investment
company) and all other applicable federal and state laws and regulations.
Notwithstanding the foregoing, the Adviser shall remain responsible for ensuring
the Fund's overall compliance with the 1940 Act, the Code and all other
applicable federal and state laws and regulations and the Subadviser is only
obligated to comply with subsection (b) with respect to the Subadviser Assets.
The Adviser will provide the Subadviser with reasonable advance notice
of any change in the Fund's investment objective, policies and restrictions as
stated in the Prospectus, and the Subadviser shall act in conformity with such
changes, provided that the Subadviser has received reasonable advance written
notice of such changes from the Trust or the Adviser. The Adviser acknowledges
and agrees that the Prospectus will at all times be in compliance with all
disclosure requirements under all applicable federal and state laws and
regulations relating to the Trust or the
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Fund, including, without limitation, the 1940 Act, and the rules and regulations
thereunder, and that the Subadviser shall have no liability in connection
therewith, except as to the accuracy of material information furnished in
writing by the Subadviser to the Fund or to the Adviser specifically for
inclusion in the Prospectus. The Subadviser hereby agrees to provide upon
request to the Adviser in a timely manner such information relating to the
Subadviser and its relationship to, and actions for, the Fund as may be required
to be contained in the Prospectus.
In fulfilling these requirements and its other requirements and
obligations hereunder, the Subadviser shall be entitled to rely on and act in
accordance with, and the Adviser agrees to hold the Subadviser harmless for
relying on and acting in accordance with, (1) information, which is not clearly
inaccurate on its face, provided to it by the Trust's administrator, fund
accountant or custodian and (2) instructions, which may be standing
instructions, from the Adviser. The Adviser agrees to provide or cause to be
provided to the Subadviser on an ongoing basis upon request by the Subadviser,
such information as is reasonably requested by the Subadviser for the
performance of its obligations under this Agreement, and the Subadviser shall
not be in breach of any term of this Agreement or be deemed to have acted
negligently if the Adviser fails to provide or cause to be provided such
information and the Subadviser relies on the information most recently furnished
to it.
(c) Voting of Proxies. Unless the Adviser notifies the Subadviser
otherwise, the Subadviser shall have the power to vote, either in person or by
proxy, all securities in which the Subadviser Assets may be invested from time
to time, and shall not be required to seek or take instructions from, the
Adviser or the Fund or take action with respect thereto. If both the Subadviser
and another entity managing assets of the Fund have invested in the same
security, the Subadviser and such other entity will each have the power to vote
its pro rata share of the security.
(d) Brokerage. The Subadviser is authorized, subject to the supervision
of the Adviser and the Trust's Board of Trustees, to establish and maintain
accounts on behalf of the Fund with, and place orders for the purchase and sale
of the fund investment with or through, such persons, broker or dealers
("brokers") as the Subadviser may elect and negotiate commissions to be paid on
such transactions. The Subadviser, however, is not required to obtain the
consent of the Adviser or the Trust's Board of Trustees prior to establishing
any such brokerage account. The Subadviser shall place all orders for the
purchase and sale of portfolio investments for the Fund's account with brokers
selected by the Subadviser. In the selection of such brokers and the placing of
such orders, the Subadviser shall use its reasonable efforts to seek to obtain
for the Fund the most favorable price and execution available, except to the
extent it may be permitted to pay higher brokerage commissions for brokerage and
research services, as provided below. In using its reasonable efforts to obtain
for the Fund the most favorable price and execution available, the Subadviser,
bearing in mind the Fund's best interests at all times, shall consider all
factors it deems relevant, including price, the size of the transaction, the
breadth and nature of the market for the security, the difficulty of the
execution, the amount of the commission, if any, the timing of the transaction,
market prices and trends, the reputation, experience and financial stability of
the
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broker involved, and the quality of service rendered by the broker or dealer in
other transactions. Subject to such policies as the Trustees may determine, or
as may be mutually agreed to by the Adviser and the Subadviser, the Subadviser
shall not be deemed to have acted unlawfully or to have breached any duty
created by this Agreement or otherwise solely by reason of its having caused the
Fund to pay a broker that provided brokerage and research services to the
Subadviser an amount of commission for effecting a Fund Investment transaction
that is in excess of the amount of commission that another broker would have
charged for effecting that transaction.
It is recognized that the services provided by such brokers may be
useful to the Subadviser in connection with the Subadviser's services to other
clients. On occasions when the Subadviser deems the purchase or sale of a
security to be in the best interests of the Fund as well as other clients of the
Subadviser, the Subadviser, 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 Subadviser in the manner the Subadviser
considers to be most equitable and consistent with its fiduciary obligations to
the Fund and to such other clients over time. It is recognized that in some
cases, this procedure may adversely affect the price paid or received by the
Fund or the size of the position obtainable for, or disposed of by, the Fund.
(e) Securities Transactions. The Subadviser and any affiliated person
of the Subadviser will not purchase securities or other instruments from or sell
securities or other instruments to the Fund; provided, however, the Subadviser
may purchase securities or other instruments from or sell securities or other
instruments to the Fund if such transaction is permissible under applicable laws
and regulations, including, without limitation, the 1940 Act and the Advisers
Act and the rules and regulations promulgated thereunder.
The Subadviser, including its Access Persons ( as defined in subsection
(e) of Rule 17j-1 under the 1940 Act), agrees to observe and comply with Rule
17j-1 and its Code of Ethics shall comply in all material respects with Rule
17j-1, as the same may be amended from time to time. On a quarterly basis, the
Subadviser will either (i) certify to the Adviser that the Subadviser and its
Access Persons have complied with the Subadviser's Code of Ethics in all
material respects with respect to the Subadviser Assets or (ii) identify any
material violations which have occurred with respect to the Subadviser Assets.
In addition, the Subadviser will report at lease annually to the Adviser
concerning any other violations of the Subadviser's Code of Ethics which
required significant remedial action and which were not previously reported.
(f) Books and Records. Pursuant to the 1940 Act and the rules and
regulations promulgated thereunder, the Subadviser shall maintain separate books
and records of all matters pertaining to the Subadviser Assets (the "Fund's
Books and Records"). The Fund's Books and Records (relating to the Subadviser
Assets) shall be the property of the Trust and shall be
available to the Adviser at any time upon reasonable request during normal
business hours and
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shall be available for telecopying without unreasonable delay to the Adviser
during any day that the Fund is open for business. Notwithstanding the
foregoing, if the Adviser takes possession of any of the Fund's Books and
Records, the Subadviser shall be entitled to retain a copy of any such books and
records.
(g) Information Concerning Fund Investments and Subadviser. From time
to time as the Adviser or the Fund may reasonably request, the Subadviser will
furnish the requesting party reports on portfolio transactions and reports on
Fund Investments held in the portfolio, all in such detail as the Adviser or the
Fund may reasonably request. The Subadviser will also inform the Adviser in a
timely manner of material changes in portfolio managers responsible for
Subadviser Assets or of material changes in the control of the Subadviser. The
Subadviser will make available its officers and employees to meet with the
Trust's Board of Trustees on reasonable notice to review the Fund Investments.
Under normal circumstance, employees of the Subadviser shall not be obligated to
attend in person more than one Board meeting per year.
(h) Custody Arrangements. The Subadviser shall on each business day
provide the Adviser and the Trust's custodian such information as the Adviser
and the Trust's custodian may reasonably request relating to all transactions
concerning the Fund Investments.
3.Independent Contractor. In the performance of its duties hereunder,
the Subadviser is and shall be an independent contractor and unless otherwise
expressly provided herein or otherwise authorized in writing, shall have no
authority to act for or represent the Fund or the Adviser in any way or
otherwise be deemed an agent of the Fund or the Adviser.
4. Expenses. During the term of this Agreement, Subadviser will pay all
expenses incurred by it in connection with its activities under this Agreement
other than the cost of securities, commodities and other investments (including
brokerage fees and commissions and other transaction charges, if any) purchased
for the Fund. The Adviser, the Trust and the Fund, to the extent agreed between
them, shall be responsible for all expenses of the operations of the Fund
including, without limitation, brokerage fees and commissions and other
transaction charges, if any. The Subadviser shall not be responsible for the
Trust's, the Fund's or the Adviser's expenses. The Subadviser shall reimburse
the Subadviser, or cause the Subadviser to be reimbursed, for any expenses of
the Trust, the Fund or the Adviser as may reasonably be incurred by the
Subadviser on behalf of the Fund or the Adviser, including without limitation
all expenses incurred by the Subadviser in connection with the attendance in
person by any officer or employee of the Subadviser at the request of the
Adviser or the Trust, at any meeting of the Board of Trustees (which expense
shall be solely that of the Adviser). The Subadviser shall keep and supply to
the Trust and Adviser reasonable records of all such expenses.
5. Compensation. For the services provided and the expenses assumed with
respect to the Fund pursuant to this Agreement, the Subadviser will be entitled
to a fee, computed daily and payable no later than the seventh (7th) business
day following the end of each month, from the
Adviser, calculated at the annual rate of .55 of 1% of the average daily net
value of the Subadviser Assets.
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The method of determining net assets of the Fund for purposes hereof
shall be the same as the method of determining net assets for purposes of
establishing the offering and redemption price of the shares as described in the
Fund's Prospectus. If this Agreement shall be effective for only a portion of a
month, the aforesaid fee shall be prorated for that portion of such month during
which this Agreement is in effect. Notwithstanding any other provision of this
Agreement, the Subadviser may from time to time agree not to impose all or a
portion of its fee otherwise payable hereunder (in advance of the time such fee
or portion thereof would otherwise accrue). Any such fee reduction may be
discontinued or modified by the Subadviser at any time. The Subadviser further
agrees that to the extent the overall advisory fee has been reduced by any
amount necessary to prevent the expenses of the Fund (exclusive of taxes,
interest, brokerage commissions and extraordinary expenses, but inclusive of the
advisor fees) from exceeding the most restrictive of the expense limitations
imposed by state securities commissions of the states in which the Fund's shares
are then registered or qualified for sale, the fee payable to the Subadviser as
provided for in the immediately preceding Paragraph will be reduced in an amount
equal to the amount of said reduction times the percentage that the fee payable
to the Subadviser bears to the total advisory fees payable with respect to the
Fund. Reimbursement, when necessary, will be made monthly in the same manner in
which the advisory fee is paid. The amount of any reimbursement shall not exceed
the aggregate amount of fees payable to the Subadviser.
6. Representations and Warranties of Subadviser. The Subadviser represents
and warrants to the Adviser and the Fund as follows:
(a) The Subadviser is registered as an investment adviser
under the Advisers Act;
(b) The Subadviser is a corporation duly organized and validly
existing under the laws of the State of Delaware with the power to own
and possess its assets and carry on its business as it is now being
conducted;
(c) The execution, delivery and performance by the Subadviser
of this Agreement are within the Subadviser's powers and have been duly
authorized by all necessary action on the part of its directors,
trustees and/or shareholders, and no action by or in respect of, or
filing with, any governmental body, agency or official is required on
the part of the Subadviser for the execution, delivery and performance
by the Subadviser of this Agreement, and the execution, delivery and
performance by the Subadviser of this Agreement do not contravene or
constitute a default under (i) any provision of applicable law, rule or
regulation, (ii) the Subadviser's governing instruments, or (iii) any
material agreement, judgment, injunction, order, decree or other
instrument binding upon the Subadviser.
(d) The Form ADV of the Subadviser previously provided to the
Adviser is a true and complete copy of the form filed with the SEC and
the information contained therein
is accurate and complete in all material respects.
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7. Representations and Warranties of Adviser. The Adviser represents
and warrants to the Subadviser as follows:
(a) The Adviser is a National Banking Association duly
organized and validly existing under the laws of the United States of
America with the power to own and possess its assets and carry on its
business as it is now being conducted;
(b) The execution, delivery and performance by the Adviser of
this Agreement are within the Adviser's powers and have been duly
authorized by all necessary action on the part of its directors,
trustees and/or shareholders, and no action by or in respect of, or
filing with, any governmental body, agency or official is required on
the part of the Adviser for the execution, delivery and performance by
the Adviser of this Agreement, and the execution, delivery and
performance by the Adviser of this Agreement do not contravene or
constitute a default under (i) any provision of applicable law, rule or
regulation, (ii) the Adviser's governing instruments, or (iii) any
material agreement, judgment, injunction, order, decree or other
instrument binding upon the Adviser;
(c) The Adviser acknowledges that it received a copy of the
Subadviser's Form ADV more than 48 hours prior to the execution of this
Agreement;
(d) The Trust is registered as in investment company under the
1940 Act and the Fund's shares are registered under the Securities Act
of 1933, as amended ("Securities Act");
(e) The Trust, on behalf of the Fund, has filed a notice of
exemption pursuant to Rule 4.5 under the Commodity Exchange Act with
the Commodity Futures Trading Commission and the National Futures
Association or is not required to file such exemption;
(f) The Trust is a Massachusetts business trust duly organized
and validly existing under the laws of the Commonwealth of
Massachusetts within the power to own and posses its assets and carry
on its business it is now being conducted.
8. Survival of Representations and Warranties; All representations and
warranties made by the Subadviser and the Adviser pursuant to Sections 6 and 7,
respectively, shall survive for the duration of this Agreement and the parties
hereto shall promptly notify each other in writing upon becoming aware that any
of the foregoing representations and warranties are no longer true.
9. Liability and Indemnification.
(a) Liability. In the absence of willful misfeasance, bad faith or gross
negligence on the part of the Subadviser or a reckless disregard of
its duties hereunder, the Subadviser, any affiliated person of the
Subadviser and each person, if any, who within the meaning of
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the Securities Act controls the Subadviser ("Controlling Persons")
shall not be subject to any expenses or liability to the Adviser, the
Trust or the Fund or any of the Fund's shareholders (other than as
provided in Section 5), and, in the absence of willful misfeasance,
bad faith or gross negligence on the part of the Adviser or a reckless
disregard of its duties hereunder, the Adviser, any affiliated
person of the Adviser and each of its Controlling Persons shall not
be subject to any expenses or liability to the Subadviser, for any
act or omission in the case of, or connected with, rendering services
hereunder or for any losses that may be sustained in the purchase,
holding or sale of Fund Investments.
(b) Indemnification. The Subadviser shall indemnify the Adviser, and its
respective officers and directors and trustees, for any liability and
expenses, including attorneys' fees, which may be sustained as a
result of the Adviser's willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties hereunder. The Adviser
shall indemnify the Subadviser, its affiliates, its Controlling
Persons and its officers and directors, for any liability and
expenses, including attorneys' fees, (i) which may be sustained as a
result of the Adviser's willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties hereunder, or (ii)
arising out of the Adviser's responsibilities based upon any act or
omission by the Adviser, any of its employees or representatives or
any affiliate of or any person acting on behalf of the Adviser, or
(iii) which may be based upon any untrue statement or alleged untrue
statement of material fact contained in the Prospectus or any sales
literature relating to the Fund, or alleged omission to state therein
a material fact known or which should have been known and was required
to be stated therein or necessaryto make the statements therein not
misleading, unless such statement or omission was made in reliance
upon written information provided to the Adviser by the Subadviser
specifically for inclusion in such Prospectus and sales literature, or
(iv) based upon any act or omission by the Trust, any of its officers
or representatives or any affiliate or any person acting on behalf of
the Trust.
10. Duration and Termination.
(a) Duration. Unless sooner terminated, this Agreement shall continue in
effect until September 30, 1998 and thereafter shall continue
automatically for successive annual periods, provided such continuance
is specifically approved at least annually by the Trust's Board of
Trustees or vote of the lesser of (a) 67% of the shares of the Fund
represented at a meeting if holders of more than 50% of the
outstanding shares of the Fund are present in person or by proxy or
(b) more than 50% of the outstanding shares of the Fund; provided that
in either event its continuance also is approved by a majority of the
Trust's Trustees who are not "interested persons" (as defined in the
0000 Xxx) of any party to this Agreement, by vote cast in person at a
meeting called for the purpose of voting on such approval.
(b) Termination. Notwithstanding whatever may be provided herein to the
contrary, this Agreement may be terminated at any time, without
payment of any penalty:
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(i) By vote of a majority of the Trust's Board of Trustees, or
by vote of a majority of the outstanding voting securities of the Fund,
or by the Adviser, in each case, upon one hundred twenty (120) days
written notice to the Subadviser;
(ii) By any party hereto immediately upon written notice to
the other parties in the event of a material breach of any provision of
this Agreement by either of the other parties; or
(iii) By the Subadviser upon sixty (60) days written notice to
the Adviser and the Trust.
This Agreement shall not be assigned (as such term is defined in the
0000 Xxx) and shall terminate automatically in the event of its assignment or
upon the termination of the Advisory Agreement. In the event this Agreement is
terminated or is not approved in the foregoing manner, the provisions contained
in Sections 8 and 9 and the requirement to pay amounts done under the first
paragraph of Section 5 (until the effective date of termination) shall remain in
effect; however, the parties will have no obligation to notify the others of
changes to the representations.
11. Use of Names.
(a) It is understood that the name "Warburg, Xxxxxx Counsellors, Inc." or
any derivative thereof or logo associated with that name is the
valuable property of the Subadviser and its affiliates and that the
Trust or the Adviser have the right to use such name (or derivative or
logo) in offering materials of the Trust or the Adviser only with the
prior written approval of the Subadviser and for so long as the
Subadviser is a subadviser to the Trust or the Adviser; provided that
the Trust or the Adviser may use such name (or derivative or logo)
without such prior written approval in offering materials of the Trust
to the extent that (i) such materials simply list the Subadviser as
the Subadviser to the Fund as part of a listing of the investment
subadvisers to the series or portfolios of the Trust with a brief
description of the Subadviser's experience and duties hereunder; (ii)
such materials include such name (or derivative or logo) and any
related information that has been previously approved by the
Subadviser or that is required to be disclosed by applicable law or
regulation, such as information disclosed in the Trust's registration
statement; or (iii) such materials are intended for use by the Trust's
Trustees, or for internal use by the Adviser, the Trust or the
principal underwriter of the Trust. Such prior written approval of the
Subadviser shall not be unreasonably withheld and shall be deemed to
be given if no written objection is received by the Trust or the
Adviser within three business days after the material is received by
the Subadviser with a request by the Trust or the Adviser for such
use. Upon termination of this Agreement, the Adviser shall cause the
Trust and the Fund to forthwith cease to use such name (or derivative
or logo) as soon as reasonably practicable.
(b) It is understood that the name "Evergreen" or any derivatives thereof
or logos -9- associated with such name is the valuable property of the
Adviser and the Trust and their affiliates and that the Subadviser or
its affiliates have the right to use such names (or derivatives of
logos) in marketing materials of the Subadviser or its affiliates only
with the prior written approval of Adviser and, if such approval is
granted, only for so long as the Subadviser is a subadviser to the
Adviser and the Trust; provided that the Subadviser or its affiliates
may use such names (or derivatives or logos) without such prior
written approval in marketing materials of the Subadviser or its
affiliates to the extent that (i) such materials simply list the
Adviser and the Trust as part of a listing of the investment companies
advised by the Subadviser or its affiliates with a brief description
of the Adviser and the Trust; (ii) such materials include such names
(or derivatives or logos) and any related information that has been
previously approved by the Adviser or that is required to be disclosed
by applicable law or regulation, such as information disclosed in the
Form ADV or Form BD of the Subadviser or its affiliates; or (iii) such
materials are intended for broker-dealer use only or for internal use
by the Subadviser. Such prior written approval of the Adviser shall
not be unreasonably withheld and shall be deemed to be given if no
written objection is received by the Subadviser within three business
day after the material is received by the Adviser with a request by
the Subadviser for such use. Upon termination of this Agreement, the
Subadviser and its affiliates shall forthwith cease to use such names
(or derivatives or logos) as soon as reasonably practicable.
12. Amendment. This Agreement may be amended by written amendment
signed by the parties, provided that the terms of any material amendment shall
be approved by : (a) the Trust's Board of Trustees or by a vote of a majority of
the outstanding voting securities of the Fund (as required by the 0000 Xxx) and
(b) the vote of a majority of those Trustees of the Trust who are not
"interested persons" of any party to this Agreement cast in person at a meeting
called for the purpose of voting on such approval, if such approval is required
by applicable law.
13. Confidentiality. Subject to the duties of the Subadviser to comply
with applicable law, including any demand of any regulatory or taxing authority
having jurisdiction, the Subadviser shall treat as confidential all records and
other information pertaining to the Fund or the Adviser which the Subadviser
maintains or receives as a result of its responsibilities under this Agreement.
In addition, subject to the duties to comply with any applicable law, the
Adviser and the Fund agree to treat as confidential any information concerning
the Subadviser, including its
investment policies or objectives, which the Adviser and the Fund receive as the
result of their actions under this Agreement.
14. Notice. Any notice that is required to be given by the parties to
each other under the terms of this Agreement shall be in writing, delivered, or
mailed postpaid to the other parties at the following addresses, which may from
time to time be changed by the parties by notice to the other parties:
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(a) If to the Subadviser:
Warburg, Xxxxxx Counsellors, Inc
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
(b) If to the Adviser:
Capital Management Group
First Union National Bank of North Carolina
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000-0000
15. Jurisdiction. This Agreement shall be governed by and construed to
be consistent with the Advisory Agreement and in accordance with substantive
laws of the State of New York without reference to choice of law principles
thereof and in accordance with the 1940 Act. In the case of any conflict, the
1940 Act shall control.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, all of which shall
together constitute one and the same instrument.
17. Definitions. For the purposes of this Agreement, "interested person,"
"affiliated person" and "assignment" shall have their respective meanings as set
forth in the 1940 Act, subject, however, to such exemptions as may be granted by
the SEC.
18. Captions. The captions herein are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
19. Severability. If any provision of this Agreement shall be held or made
invalid by a
court decision or applicable law, the remainder of the Agreement shall not be
affected adversely and shall remain in full force and effect.
20. Massachusetts Business Trust. The terms "Trust" and "Trustees"
refer respectively to the Trust created and the Trustees as trustees but not
individually or personally, acting from time to time under a Declaration of
Trust, which has been or may be amended from time to time, and to which
reference is hereby made and a copy of which is on file at the office of the
Secretary of State of The Commonwealth of Massachusetts and elsewhere as
required by law, and to any and all amendments thereto so filed or hereafter
filed. The obligations of the Trust entered into in the name or on behalf
thereof by any of the Trust, the Trustees or their representatives or agents are
not made individually, but only in their capacities with respect to the Trust.
Such obligations are not binding upon any of the trustees, shareholders or
representatives of the Trust personally, but
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bind only the assets of the Trust. All persons dealing with any series of shares
of the Trust must look solely to the assets of the Trust belonging to such
series for the enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
WARBURG, XXXXXX COUNSELLORS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director
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