XXXX XXXXXXX TRUST
SUBADVISORY AGREEMENT
AGREEMENT made this ___ day of _________, ____, between Xxxx Xxxxxxx
Investment Services, LLC, a Delaware limited liability company (the "Adviser"),
and U. S. Trust Company, N.A., Asset Management Division and U.S. Trust New York
Asset Management Division (collectively, the "Subadviser"). In consideration of
the mutual covenants contained herein, the parties agree as follows:
1. APPOINTMENT OF SUBADVISER
The Subadviser undertakes to act as investment subadviser to, and, subject
to the supervision of the Trustees of Xxxx Xxxxxxx Trust (the "Trust") and the
terms of this Agreement, to manage the investment and reinvestment of the assets
of the Portfolios specified in Appendix A to this Agreement as it shall be
amended by the Adviser and the Subadviser from time to time (the "Portfolios").
The Subadviser will be an independent contractor and will have no authority to
act for or represent the Trust or Adviser in any way except as expressly
authorized in this Agreement or another writing by the Trust and Adviser.
2. SERVICES TO BE RENDERED BY THE SUBADVISER TO THE TRUST
a. Subject always to the direction and control of the Trustees of the Trust,
the Subadviser will manage the investments and determine the composition
of the assets of the Portfolios in accordance with the Portfolios'
registration statement provided, however, that copies of the registration
statement, as it may be amended from time to time, shall be provided to
Subadviser, marked to show changes, prior to the time Subadviser shall be
expected to manage the portfolio in accordance with such changes.
Notwithstanding the foregoing, unless a change to the registration
statement is required as a result of new regulatory requirements or a
change in the registration statement is required by the Securities and
Exchange Commission, no change to the registration statement which effects
the manner in which Subadviser is to manage the Portfolio will take effect
without 60 days prior notice to the Subadviser. In fulfilling its
obligations to manage the investments and reinvestments of the assets of
the Portfolios, the Subadviser will:
i. obtain and evaluate pertinent economic, statistical, financial and
other information affecting the economy generally and individual
companies or industries the securities of which are included in the
Portfolios or are under consideration for inclusion in the
Portfolios;
ii. formulate and implement a continuous investment program for each
Portfolio consistent with the investment objectives and related
investment policies for each such Portfolio as described in the
Trust's registration statement, as amended;
iii. take whatever steps are necessary to implement these investment
programs by the purchase and sale of securities including the
placing of orders for such purchases and sales;
iv. regularly report to the Trustees of the Trust with respect to the
implementation of these investment programs; and
v. provide assistance to the Trust's Custodian regarding the fair value
of securities held by the Portfolios for which market quotations are
not readily available.
b. The Subadviser, at its expense, will furnish (i) all necessary investment
and management facilities, including salaries of personnel required for it
to execute its duties faithfully, and (ii) administrative facilities,
including bookkeeping, clerical personnel and equipment necessary for the
efficient conduct of the investment affairs of the Portfolios (excluding
determination of net asset value and shareholder accounting services).
c. The Subadviser will select brokers and dealers to effect all transactions
subject to the following conditions: the Subadviser will place all
necessary orders with brokers, dealers, or issuers, and will negotiate
brokerage commissions if applicable. The Subadviser is directed at all
times to seek to execute brokerage transactions for the Portfolios in
accordance with such policies or practices as may be established by the
Trustees and described in the Trust's registration statement as amended.
The Subadviser may pay a broker-dealer which provides research and
brokerage services a higher spread or commission for a particular
transaction than otherwise might have been charged by another
broker-dealer, if the Subadviser determines that the higher spread or
commission is reasonable in relation to the value of the brokerage and
research services that such broker-dealer provides, viewed in terms of
either the particular transaction or the Subadviser's overall
responsibilities with respect to accounts managed by the Subadviser. The
Subadviser may use for the benefit of the Subadviser's other clients, or
make available to companies affiliated with the Subadviser or to its
directors for the benefit of its clients, any such brokerage and research
services that the Subadviser obtains from brokers or dealers.
d. On occasions when the Subadviser deems the purchase or sale of a security
to be in the best interest of the Portfolio 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 purchased or sold to attempt to obtain a more favorable
price or lower brokerage commissions and efficient execution. In such
event, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Subadviser in
the manner the Subadviser considers to be the most equitable and
consistent with its fiduciary obligations to the Portfolio and to its
other clients.
e. The Subadviser will maintain all accounts, books and records with respect
to its activities rendered to the Portfolios as are required of an
investment adviser of a registered investment company pursuant to the
Investment Company Act of 1940 (the "Investment Company Act") and
Investment Advisers Act of 1940 (the "Investment Advisers Act") and the
rules thereunder.
g. The Subadviser shall vote all proxies received in connection with
securities held by the Portfolios in accordance with Trust's proxy voting
policies and guidelines, which policies and guidelines shall incorporate
the Subadviser's own internal proxy voting policies and guidelines.
3. COMPENSATION OF SUBADVISER
The Adviser will pay the Subadviser with respect to each Portfolio the
compensation specified in Appendix A to this Agreement.
4. LIABILITY OF SUBADVISER
Neither the Subadviser nor any of its directors, officers or employees
shall be liable to the Adviser or the Trust for any error of judgment or mistake
of law or for any loss suffered by the Adviser or Trust in connection with the
matters to which this Agreement relates except for losses resulting from willful
misfeasance, bad faith or gross negligence in the performance of, or from the
reckless disregard of, the duties of the Subadviser or any of its directors. In
no event will Subadviser have any responsibility for any other portfolio of the
Trust, or for any portion of the Portfolios not managed by Subadviser.
5. CONFLICTS OF INTEREST
It is understood that trustees, officers, agents and shareholders of the
Trust are or may be interested in the Subadviser as trustees, officers, partners
or otherwise; that employees, agents and partners of the Subadviser are or may
be interested in the Trust as trustees, officers, shareholders or otherwise;
that the Subadviser may be interested in the Trust; and that the existence of
any such dual interest shall not affect the validity hereof or of any
transactions hereunder except as otherwise provided in the Agreement and
Declaration of Trust of the Trust and the organizational documents of the
Subadviser, respectively, or by specific provision of applicable law.
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6. REGULATION
The Subadviser shall submit to all regulatory and administrative bodies
having jurisdiction over the services provided pursuant to this Agreement any
information, reports or other material which any such body by reason of this
Agreement may request or require pursuant to applicable laws and regulations.
7. DURATION AND TERMINATION OF AGREEMENT
This Agreement shall become effective with respect to each Portfolio on
the later of (i) its execution and (ii) the date of the meeting of the Board of
Trustees of the Trust, at which meeting this Agreement is approved as described
below. The Agreement will continue in effect for a period more than two years
from the date of its execution only so long as such continuance is specifically
approved at least annually either by the Trustees of the Trust or by a majority
of the outstanding voting securities of each of the Portfolios, provided that in
either event such continuance shall also be approved by the vote of a majority
of the Trustees of the Trust who are not interested persons (as defined in the
Investment Company Act) of any party to this Agreement cast in person at a
meeting called for the purpose of voting on such approval. Any required
shareholder approval of the Agreement or of any continuance of the Agreement
shall be effective with respect to any Portfolio if a majority of the
outstanding voting securities of the series (as defined in Rule 18f-2(h) under
the Investment Company Act) of shares of that Portfolio votes to approve the
Agreement or its continuance, notwithstanding that the Agreement or its
continuance may not have been approved by a majority of the outstanding voting
securities of (a) any other Portfolio affected by the Agreement or (b) all the
portfolios of the Trust.
If any required shareholder approval of this Agreement or any continuance
of the Agreement is not obtained, the Subadviser will continue to act as
investment subadviser with respect to such Portfolio for up to 150 days after
termination of the agreement, pending the required approval of the Agreement or
its continuance or of a new contract with the Subadviser or a different adviser
or subadviser or other definitive action; provided, that the compensation
received by the Subadviser in respect of such Portfolio during such period is in
compliance with Rule 15a-4 under the Investment Company Act.
This Agreement may be terminated at any time, without the payment of any
penalty, by the Trustees of the Trust, by the vote of a majority of the
outstanding voting securities of the Trust, or with respect to any Portfolio by
the vote of a majority of the outstanding voting securities of such Portfolio,
on sixty days' written notice to the Adviser and the Subadviser, or by the
Adviser or Subadviser on sixty days' written notice to the Trust and the other
party. This Agreement will automatically terminate, without the payment of any
penalty, in the event of its assignment (as defined in the Investment Company
Act) or in the event the Advisory Agreement between the Adviser and the Trust
terminates for any reason.
8. PROVISION OF CERTAIN INFORMATION BY SUBADVISER
The Subadviser will promptly notify the Adviser in writing of the
occurrence of any of the following events:
a. the Subadviser fails to be registered as an investment adviser under the
Investment Advisers Act or under the laws of any jurisdiction in which the
Subadviser is required to be registered as an investment adviser in order
to perform its obligations under this Agreement;
b. the Subadviser is served or otherwise receives notice of any action, suit,
proceeding, inquiry or investigation, at law or in equity, before or by
any court, public board or body, involving the affairs of the Trust; and
c. any change in actual control or management of the Subadviser or the
portfolio manager of any Portfolio.
9. SERVICES TO OTHER CLIENTS
The Adviser understands, and has advised the Trust's Board of Trustees,
that the Subadviser now acts, or may in the future act, as an investment adviser
to fiduciary and other managed accounts and as investment adviser or subadviser
to other investment companies. Further, the Adviser understands, and has advised
the Trust's Board of
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Trustees that the Subadviser and its affiliates may give advice and take action
for its accounts, including investment companies, which differs from advice
given on the timing or nature of action taken for the Portfolio. The Subadviser
is not obligated to initiate transactions for a Portfolio in any security which
the Subadviser, its partners, affiliates or employees may purchase or sell for
their own accounts or other clients.
10. CONSULTATION WITH SUBADVISERS TO OTHER TRUST PORTFOLIOS
As required by Rule 17a-10 under the Investment Company Act of 1940, the
Subadviser is prohibited from consulting with the entities listed below
concerning transactions for a Portfolio in securities or other assets:
1. other subadvisers to a Portfolio
2. other subadvisers to a Trust portfolio
3. other subadvisers to a portfolio under common control with the Portfolio
11. AMENDMENTS TO THE AGREEMENT
This Agreement may be amended by the parties only if such amendment is
specifically approved by the vote of a majority of the Trustees of the Trust and
by the vote of a majority of the 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. Any required shareholder approval shall
be effective with respect to any Portfolio if a majority of the outstanding
voting securities of that Portfolio vote to approve the amendment,
notwithstanding that the amendment may not have been approved by a majority of
the outstanding voting securities of (a) any other Portfolio affected by the
amendment or (b) all the portfolios of the Trust.
12. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties.
13. HEADINGS
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
14. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the last known business address of the Trust or
applicable party in person or by registered mail or a private mail or delivery
service providing the sender with notice of receipt. Notice shall be deemed
given on the date delivered or mailed in accordance with this paragraph.
15. SEVERABILITY
Should any portion of this Agreement for any reason be held to be void in
law or in equity, the Agreement shall be construed, insofar as is possible, as
if such portion had never been contained herein.
16. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of The Commonwealth of Massachusetts, or any of the
applicable provisions of the Investment Company Act. To the extent that the laws
of The Commonwealth of Massachusetts, or any of the provisions in this
Agreement, conflict with applicable provisions of the Investment Company Act,
the latter shall control.
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17. LIMITATION OF LIABILITY
The Agreement and Declaration of Trust dated September 28, 1988, a copy of
which, together with all amendments thereto (the "Declaration"), is on file in
the office of the Secretary of The Commonwealth of Massachusetts, provides that
the name "Manufacturers Investment Trust" refers to the Trustees under the
Declaration collectively as Trustees, but not as individuals or personally; and
no Trustee, shareholder, officer, employee or agent of the Trust shall be held
to any personal liability, nor shall resort be had to their private property,
for the satisfaction of any obligation or claim, in connection with the affairs
of the Trust or any portfolio thereof, but only the assets belonging to the
Trust, or to the particular Portfolio with respect to which such obligation or
claim arose, shall be liable.
18. CONFIDENTIALITY OF TRUST PORTFOLIO HOLDINGS
The Subadviser agrees to treat Trust portfolio holdings as confidential
information in accordance with the Trust's "Policy Regarding Disclosure of
Portfolio Holdings," as such policy may be amended from time to time, and to
prohibit its employees from trading on any such confidential information. The
Adviser agrees to treat information concerning that portion of the Portfolios
managed by the Subadviser, including the identity of the specific holdings
within such Portfolios, as confidential information in accordance with the
Trust's "Policy Regarding Disclosure of Portfolio Holdings," as such policy may
be amended from time to time, and will not disclose such information to other
subadvisers of the Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers as of the date first
mentioned above.
Xxxx Xxxxxxx Investment Management Services, LLC
by: Xxxx Xxxxxxx Life Insurance Company (U.S.A.),
Managing Member
________________________
U.S. Trust Company, N.A. Asset Management Division
by: ______________________________
U.S. Trust New York Asset Management Division
by: ______________________________
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APPENDIX A
The Subadviser shall serve as investment subadviser for each Portfolio of
the Trust listed below. The Adviser will pay the Subadviser, as full
compensation for all services provided under this Agreement with respect to each
Portfolio, the fee computed separately for such Portfolio at an annual rate as
follows (the "Subadviser Fee"):
FIRST EXCESS OVER $500
$500 MILLION OF MILLION OF
AGGREGATE NET AGGREGATE NET
PORTFOLIO ASSETS* ASSETS*
------------------------------------ --------------- ----------------
Value & Restructuring Trust.........
*The term Aggregate Net Assets includes the net assets of a Portfolio of the
Trust. It also includes with respect to each Portfolio the net assets of one or
more other portfolios as indicated below, but in each case only for the period
during which the Subadviser for the Portfolio also serves as the subadviser for
the other portfolio(s). For purposes of determining Aggregate Net Assets and
calculating the Subadviser Fee, the net assets of the Portfolio and each other
portfolio of the Trust are determined as of the close of business on the
previous business day of the Trust, and the net assets of each portfolio of each
other fund are determined as of the close of business on the previous business
day of that fund.
Trust Portfolio(s) Other Portfolio(s)
--------------------------- ---------------------------------------
Value & Restructuring Trust -- Value & Restructuring Fund, a series of
Xxxx Xxxxxxx Funds II
The Subadviser Fee for a Portfolio shall be based on the applicable annual
fee rate for the Portfolio which for each day shall be equal to the quotient of
(i) the sum of the amounts determined by applying the annual percentage rates in
the table to the applicable portions of Aggregate Net Assets divided by (ii)
Aggregate Net Assets (the "Applicable Annual Fee Rate"). The Subadviser Fee for
each Portfolio shall be accrued for each calendar day, and the sum of the daily
fee accruals shall be paid monthly to the Subadviser within 30 calendar days of
the end of each month. The daily fee accruals will be computed by multiplying
the fraction of one over the number of calendar days in the year by the
Applicable Annual Fee Rate, and multiplying this product by the net assets of
the Portfolio. The Adviser shall provide Subadviser with such information as
Subadviser may reasonably request supporting the calculation of the fees paid to
it hereunder. Fees shall be paid either by wire transfer or check, as directed
by Subadviser.
If, with respect to any Portfolio, this Agreement becomes effective or
terminates, or if the manner of determining the Applicable Annual Fee Rate
changes, before the end of any month, the fee (if any) for the period from the
effective date to the end of such month or from the beginning of such month to
the date of termination or from the beginning of such month to the date such
change, as the case may be, shall be prorated according to the proportion which
such period bears to the full month in which such effectiveness or termination
or change occurs.
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SUBADVISORY AGREEMENT ASSUMPTION AGREEMENT
This assumption agreement (the "Agreement") is effective as of the 16th
day of December, 2005 (the "Effective Date") by and between UST Advisers, Inc.,
a Delaware corporation ("USTA"), United States Trust Company of New York, on
behalf of its Asset Management Division, a state chartered bank and trust
company and a member bank of the Federal Reserve System ("UST-NY"), U.S. Trust
Company, National Association, on behalf of its Asset Management Division, a
national bank organized under the laws of the United States ("UST-NA") and Xxxx
Xxxxxxx Investment Management Services LLC, a Delaware limited liability company
(the "Adviser").
WHEREAS, UST-NA, UST-NY and the Adviser are parties to that certain
Sub-Advisory Agreement dated October 17, 2005 (the "Sub-Advisory Agreement")
relating to the Xxxx Xxxxxxx Trust;
WHEREAS, UST-NA and UST-NY wish to restructure the manner in which they
provide investment advisory services under the Sub-Advisory Agreement so as to
provide such services through USTA, a new wholly-owned subsidiary of UST-NA and
a registered investment adviser under the Investment Advisers Act of 1940, and
to assign and be discharged from their duties, obligations, liabilities and
rights under the Sub-Advisory Agreement.
WHEREAS, USTA wishes to assume all of UST-NY's and UST-NA's duties,
obligations, liabilities and rights under the Sub-Advisory Agreement; and to
provide all of the services formerly provided by UST-NA and UST-NY under the
Sub-Advisory Agreement.
WHEREAS, U.S. Trust Corporation, the parent of UST-NA, USTA and UST-NY
("UST-Corp."), wishes to provide an indemnity to the Adviser for certain matters
as described herein.
NOW, THEREFORE, based on the foregoing, the parties agree as follows:
1. Assumption. UST-NY and UST-NA hereby assign to USTA, and USTA
hereby assumes, as of the Effective Date, all of UST-NA's and
UST-NY's respective obligations, liabilities and rights and
duties under the Sub-Advisory Agreement.
2. Release. The Adviser hereby releases each of UST-NA and
UST-NY, as of the Effective Date, from all of its duties,
obligations and liabilities under the Sub-Advisory Agreement,
and each of UST-NA and UST-NY surrenders all of its rights
under the Sub-Advisory Agreement.
3. Indemnity. UST-Corp. agrees to ensure that USTA will perform
all of UST-NA's and UST-NY's duties and obligations under the
Sub-Advisory Agreement and agrees to indemnify, defend and
hold the Adviser harmless for any and all losses, liabilities,
actions or expenses resulting from or arising out of the
failure of USTA to perform any of the duties and obligations
assumed by it under the Sub-Advisory Agreement to the same
extent that UST-NA and UST-NY would have been liable for such
failure to perform.
UST-Corp. hereby waives any requirement that the Adviser
exhaust any right or remedy or proceed or take any action
against USTA, UST-NA or UST-NY before exercising any right or
remedy against UST-Corp. under this Agreement.
4. Representations. UST-NY, UST-NA and USTA hereby represent that
after the assumption referred to above: (a) the management
personnel of USTA responsible for providing the investment
advisory services under the Sub-Advisory Agreement, including
the portfolio managers and the supervisory personnel, will
provide the same services as are currently provided by
officers or employees of UST-NY and UST-NA under the
Sub-Advisory Agreement; and (b) USTA will be a wholly-owned
indirect subsidiary of UST-Corp. Consequently, UST-NY and
UST-NA believe that the assumption effected by this Agreement
does not involve a change in actual control or actual
management with respect to the sub-advisers to the Xxxx
Xxxxxxx Funds II.
5. Other Matters. USTA is hereby bound by all of the terms and
conditions of the Sub-Advisory Agreement, which will continue
in full force and effect with respect to USTA.
6. Headings and Captions. The document headings and captions
contained herein are for ease of reference only, and shall not
effect the meaning or interpretation of this Agreement.
7. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the ____day of December, 2005.
UST ADVISERS, INC.
By:____________________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK
By:____________________________________
Name:
Title:
U.S. TRUST COMPANY, NATIONAL
ASSOCIATION
By:____________________________________
Name:
Title:
XXXX XXXXXXX INVESTMENT
MANAGEMENTS SERVICES LLC
By: Xxxx Xxxxxxx Life Insurance Company
(U.S.A.), its Managing Member
By:____________________________________
Name:
Title:
U.S. TRUST CORPORATION, for purposes of
section 3 hereof only
By:____________________________________
Name:
Title:
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