Exhibit (d)(2)
CDC NVEST TAX EXEMPT MONEY MARKET TRUST
Form of Sub-Advisory Agreement
(Xxxxx & Xxxx Asset Management, LLC)
Sub-Advisory Agreement (this "Agreement") entered into as of 1st day of
October, 2001, by and among CDC Nvest Tax Exempt Money Market Trust, a
Massachusetts business trust (the "Trust"), CDC IXIS Asset Management Advisers,
L.P., a Delaware limited partnership (the "Manager"), and Xxxxx & Tang Asset
Management, LLC, a Delaware limited liability company (the "Sub-Adviser").
WHEREAS, the Manager has entered into an Advisory Agreement dated October
30, 2000 (the "Advisory Agreement") with the Trust, relating to the provision of
portfolio management and administrative services to the Trust;
WHEREAS, the Advisory Agreement provides that the Manager may delegate any
or all of its portfolio management responsibilities under the Advisory Agreement
to one or more sub-advisers;
WHEREAS, the Manager and the trustees of the Trust desire to retain the
Sub-Adviser to render portfolio management services in the manner and on the
terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, the Trust, the Manager and the Sub-Adviser agree as
follows:
1. Sub-Advisory Services.
a. The Sub-Adviser shall, subject to the supervision of the Manager
and of any administrator appointed by the Manager (the "Administrator"),
manage the investment and reinvestment of the assets of the Trust, and have
the authority on behalf of the Trust to vote all proxies and exercise all
other rights of the Trust as a security holder of companies in which the
Trust from time to time invests. The Sub-Adviser shall manage the Trust in
conformity with (1) the investment objective, policies and restrictions of
the Trust set forth in the Trust's prospectus and statement of additional
information relating to the Trust, (2) any additional policies or
guidelines established by the Manager or by the Trust's trustees that have
been furnished in writing to the Sub-Adviser and (3) the provisions of the
Internal Revenue Code (the "Code") applicable to "regulated investment
companies" (as defined in Section 851 of the Code), all as from time to
time in effect (collectively, the "Policies"), and with all applicable
provisions of law, including without limitation all applicable provisions
of the Investment Company
Act of 1940 (the "1940 Act") and the rules and regulations thereunder.
Subject to the foregoing, the Sub-Adviser is authorized, in its discretion
and without prior consultation with the Manager, to buy, sell, lend and
otherwise trade in any stocks, bonds and other securities and investment
instruments on behalf of the Trust, without regard to the length of time
the securities have been held and the resulting rate of portfolio turnover
or any tax considerations; and the majority or the whole of the Trust may
be invested in such proportions of stocks, bonds, other securities or
investment instruments, or cash, as the Sub-Adviser shall determine.
b. The Sub-Adviser shall furnish the Manager and the Administrator
monthly, quarterly and annual reports concerning portfolio transactions and
performance of the Trust in such form as may be mutually agreed upon, and
agrees to review the Trust and discuss the management of it. The
Sub-Adviser shall permit all books and records with respect to the Trust to
be inspected and audited by the Manager and the Administrator at all
reasonable times during normal business hours, upon reasonable notice. The
Sub-Adviser shall also provide the Manager with such other information and
reports as may reasonably be requested by the Manager from time to time,
including without limitation all material requested by or required to be
delivered to the trustees of the Trust.
c. The Sub-Adviser shall provide to the Manager a copy of the
Sub-Adviser's Form ADV as filed with the Securities and Exchange Commission
and a list of the persons whom the Sub-Adviser wishes to have authorized to
give written and/or oral instructions to custodians of assets of the Trust.
2. Obligations of the Manager.
a. The Manager shall provide (or cause the Trust's Custodian (as
defined in Section 3 hereof) to provide) timely information to the
Sub-Adviser regarding such matters as the composition of assets of the
Trust, cash requirements and cash available for investment in the Trust,
and all other information as may be reasonably necessary for the
Sub-Adviser to perform its responsibilities hereunder.
b. The Manager has furnished the Sub-Adviser a copy of the prospectus
and statement of additional information of the Trust and agrees during the
continuance of this Agreement to furnish the Sub-Adviser copies of any
revisions or supplements thereto at, or, if practicable, before the time
the revisions or supplements become effective. The Manager agrees to
furnish the Sub-Adviser with minutes of meetings of the trustees of the
Trust applicable to the Trust to the extent they may affect the duties of
the Sub-Adviser, and with copies of any financial statements or reports
made by the Trust to its shareholders, and any further materials or
information which the Sub-Adviser may reasonably request to enable it to
perform its functions under this Agreement.
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3. Custodian. The Manager shall provide the Sub-Adviser with a copy of the
Trust's agreement with the custodian designated to hold the assets of the Trust
(the "Custodian") and any modifications thereto (the "Custody Agreement"),
copies of such modifications to be provided to the Sub-Adviser a reasonable time
in advance of the effectiveness of such modifications. The assets of the Trust
shall be maintained in the custody of the Custodian identified in, and in
accordance with the terms and conditions of, the Custody Agreement (or any
sub-custodian properly appointed as provided in the Custody Agreement). The
Sub-Adviser shall have no liability for the acts or omissions of the Custodian,
unless such act or omission is taken in reliance upon instruction given to the
Custodian by a representative of the Sub-Adviser properly authorized to give
such instruction under the Custody Agreement. Any assets added to the Trust
shall be delivered directly to the Custodian.
4. Proprietary Rights. The Manager agrees and acknowledges that the
Sub-Adviser is the sole owner of the name "Xxxxx & Xxxx Asset Management, LLC"
and that all use of any designation consisting in whole or part of "Xxxxx & Tang
Asset Management, LLC" under this Agreement shall inure to the benefit of the
Sub-Adviser. The Manager on its own behalf and on behalf of the Trust agrees not
to use any such designation in any advertisement or sales literature or other
materials promoting the Trust, except with the prior written consent of the
Sub-Adviser. Without the prior written consent of the Sub-Adviser, the Manager
shall not, and the Manager shall use its best efforts to cause the Trust not to,
make representations regarding the Sub-Adviser in any disclosure document,
advertisement or sales literature or other materials relating to the Trust. Upon
termination of this Agreement for any reason, the Manager shall cease, and the
Manager shall use its best efforts to cause the Trust to cease, all use of any
such designation as soon as reasonably practicable.
5. Expenses. Except for expenses specifically assumed or agreed to be paid
by the Sub-Adviser pursuant hereto, the Sub-Adviser shall not be liable for any
organizational, operational or business expenses of the Manager or the Trust
including, without limitation, (a) interest and taxes, (b) brokerage commissions
and other costs in connection with the purchase or sale of securities or other
investment instruments with respect to the Trust, and (c) custodian fees and
expenses. Any reimbursement of advisory fees required by any expense limitation
provision of any law shall be the sole responsibility of the Manager. The
Manager and the Sub-Adviser shall not be considered as partners or participants
in a joint venture. The Sub-Adviser will pay its own expenses incurred in
furnishing the services to be provided by it pursuant to this Agreement. Neither
the Sub-Adviser nor any affiliated person thereof shall be entitled to any
compensation from the Manager or the Trust with respect to service by any
affiliated person of the Sub-Adviser as an officer or trustee of the Trust
(other than the compensation to the Sub-Adviser payable by the Manager pursuant
to Section 7 hereof).
6. Purchase and Sale of Assets. The Sub-Adviser shall place all orders for
the purchase and sale of securities for the Trust with brokers or dealers
selected by the Sub-Adviser, which may include brokers or dealers affiliated
with the Sub-Adviser, provided
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such orders comply with Rule 17e-1 under the 1940 Act in all respects. To the
extent consistent with applicable law, purchase or sell orders for the Trust may
be aggregated with contemporaneous purchase or sell orders of other clients of
the Sub-Adviser. The Sub-Adviser shall use its best efforts to obtain execution
of transactions for the Trust at prices which are advantageous to the Trust and
at commission rates that are reasonable in relation to the benefits received.
However, the Sub-Adviser may select brokers or dealers on the basis that they
provide brokerage, research or other services or products to the Trust and/or
other accounts serviced by the Sub-Adviser. To the extent consistent with
applicable law, the Sub-Adviser may pay a broker or dealer an amount of
commission for effecting a securities transaction in excess of the amount of
commission or dealer spread another broker or dealer would have charged for
effecting that transaction if the Sub-Adviser determines in good faith that such
amount of commission was reasonable in relation to the value of the brokerage
and research products and/or services provided by such broker or dealer. This
determination, with respect to brokerage and research services or products, may
be viewed in terms of either that particular transaction or the overall
responsibilities which the Sub-Adviser and its affiliates have with respect to
the Trust or to accounts over which they exercise investment discretion. Not all
such services or products need be used by the Sub-Adviser in managing the Trust.
To the extent permitted by applicable law, and in all instances subject to
the foregoing policy of best execution, the Sub-Adviser may allocate brokerage
transactions in a manner that takes into account the sale of shares of one or
more funds distributed by CDC IXIS Asset Management Distributors, LLC (the
"Distributor"). In addition, the Sub-Adviser may allocate brokerage transactions
to broker-dealers (including affiliates of the Distributor) that have entered
into arrangements in which the broker-dealer allocates a portion of the
commissions paid by a fund toward the reduction of that fund's expenses, subject
to the policy of best execution.
7. Compensation of the Sub-Adviser. As full compensation for all services
rendered, facilities furnished and expenses borne by the Sub-Adviser hereunder,
the Sub-Adviser shall be paid at the annual rate of 0.17% of the first $250
million of the average daily net assets of the Trust, 0.14% of the next $250
million of the average daily net assets of the Trust, 0.13% of the next $500
million of the average daily net assets of the Trust and 0.10% of such assets in
excess of $1 billion (or such lesser amount as the Sub-Adviser may from time to
time agree to receive). Such compensation shall be paid by the Trust (except to
the extent that the Trust, the Sub-Adviser and the Manager otherwise agree in
writing from time to time). Such compensation shall be payable monthly in
arrears or at such other intervals, not less frequently than quarterly, as the
Manager is paid by the Trust pursuant to the Advisory Agreement.
8. Non-Exclusivity. The Manager and the Trust agree that the services of
the Sub-Adviser are not to be deemed exclusive and that the Sub-Adviser and its
affiliates are free to act as investment manager and provide other services to
various investment companies and other managed accounts, except as the
Sub-Adviser and the Manager or the Administrator may otherwise agree from time
to time in writing before or after the
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date hereof. This Agreement shall not in any way limit or restrict the
Sub-Adviser or any of its directors, officers, employees or agents from buying,
selling or trading any securities or other investment instruments for its or
their own account or for the account of others for whom it or they may be
acting, provided that such activities do not adversely affect or otherwise
impair the performance by the Sub-Adviser of its duties and obligations under
this Agreement. The Manager and the Trust recognize and agree that the
Sub-Adviser may provide advice to or take action with respect to other clients,
which advice or action, including the timing and nature of such action, may
differ from or be identical to advice given or action taken with respect to the
Trust. The Sub-Adviser shall for all purposes hereof be deemed to be an
independent contractor and shall, unless otherwise provided or authorized, have
no authority to act for or represent the Trust or the Manager in any way or
otherwise be deemed an agent of the Trust or the Manager.
9. Liability. Except as may otherwise be provided by the 1940 Act or other
federal securities laws, neither the Sub-Adviser nor any of its officers,
directors, partners, employees or agents (the "Indemnified Parties") shall be
subject to any liability to the Manager, the Trust or any shareholder of the
Trust for any error of judgment, any mistake of law or any loss arising out of
any investment or other act or omission in the course of, connected with, or
arising out of any service to be rendered under this Agreement, except by reason
of willful misfeasance, bad faith or gross negligence in the performance of the
Sub-Adviser's duties or by reason of reckless disregard by the Sub-Adviser of
its obligations and duties hereunder. The Manager shall hold harmless and
indemnify the Sub-Adviser for any loss, liability, cost, damage or expense
(including reasonable attorneys fees and costs) arising from any claim or demand
by any past or present shareholder of the Trust that is not based upon the
obligations of the Sub-Adviser under this Agreement.
The Manager acknowledges and agrees that the Sub-Adviser makes no
representation or warranty, expressed or implied, that any level of performance
or investment results will be achieved by the Trust or that the Trust will
perform comparably with any standard or index, including other clients of the
Sub-Adviser, whether public or private.
10. Effective Date and Termination. This Agreement shall become effective
as of the date of its execution, and
a. unless otherwise terminated, this Agreement shall continue in
effect for two years from the date of execution, and from year to year
thereafter so long as such continuance is specifically approved at least
annually (i) by the Board of Trustees of the Trust or by vote of a majority
of the outstanding voting securities of the Trust, and (ii) by vote of a
majority of the trustees of the Trust who are not interested persons of the
Trust, the Manager or the Sub-Adviser, cast in person at a meeting called
for the purpose of voting on such approval;
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b. this Agreement may at any time be terminated on sixty days' written
notice to the Sub-Adviser either by vote of the Board of Trustees of the
Trust or by vote of a majority of the outstanding voting securities of the
Trust;
c. this Agreement shall automatically terminate in the event of its
assignment or upon the termination of the Advisory Agreement; and
d. this Agreement may be terminated by the Sub-Adviser on ninety days'
written notice to the Manager and the Trust, or by the Manager on ninety
days' written notice to the Sub-Adviser.
Termination of this Agreement pursuant to this Section 10 shall be without
the payment of any penalty.
11. Amendment. This Agreement may be amended at any time by mutual consent
of the Manager and the Sub-Adviser, provided that, if required by law, such
amendment shall also have been approved by vote of a majority of the outstanding
voting securities of the Trust and by vote of a majority of the trustees of the
Trust who are not interested persons of the Trust, the Manager or the
Sub-Adviser, cast in person at a meeting called for the purpose of voting on
such approval.
12. Certain Definitions. For the purpose of this Agreement, the terms "vote
of a majority of the outstanding voting securities," "interested person,"
"affiliated person" and "assignment" shall have their respective meanings
defined in the 1940 Act, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under the 1940 Act.
13. General.
a. The Sub-Adviser may perform its services through any employee,
officer or agent of the Sub-Adviser, and the Manager shall not be entitled
to the advice, recommendation or judgment of any specific person; provided,
however, that the persons identified in the prospectus of the Trust shall
perform the day-to-day portfolio management duties described therein until
the Sub-Adviser notifies the Manager that one or more other employees,
officers or agents of the Sub-Adviser, identified in such notice, shall
assume such duties as of a specific date.
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b. If any term or provision of this Agreement or the application
thereof to any person or circumstances is held to be invalid or
unenforceable to any extent, the remainder of this Agreement or the
application of such provision to other persons or circumstances shall not
be affected thereby and shall be enforced to the fullest extent permitted
by law.
c. In accordance with Regulation S-P, if non-public personal
information regarding either party's customers or consumers is disclosed to
the other party in connection with this Agreement, the party receiving such
information will not disclose or use that information other than as
necessary to carry out the purposes of this Agreement.
c. This Agreement shall be governed by and interpreted in accordance
with the laws of the Commonwealth of Massachusetts.
CDC IXIS ASSET MANAGEMENT ADVISERS, L.P.
By CDC IXIS Asset Management Distribution Corp., its general partner
By:______________________________
Name:
Title:
XXXXX & XXXX ASSET MANAGEMENT, LLC
By:______________________________
Name:
Title:
CDC NVEST TAX EXEMPT MONEY MARKET TRUST,
By:______________________________
Name:
Title:
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NOTICE
A copy of the Agreement and Declaration of Trust establishing CDC Nvest Tax
Exempt Money Market Trust (the "Fund") is on file with the Secretary of The
Commonwealth of Massachusetts, and notice is hereby given that this Agreement is
executed on behalf of the Fund by officers of the Fund as officers and not
individually and that the obligations of or arising out of this Agreement are
not binding upon any of the trustees, officers or shareholders individually but
are binding only upon the assets and property belonging to the Trust.
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