Exhibit (d)(53)
INVESTMENT SUB-ADVISORY AGREEMENT
Xxxxxxx Xxxxxxxxx Foreign Value Portfolio
AGREEMENT made this 15th day of November, 2004, between Deutsche
Investment Management Americas Inc. (the "Adviser") and Xxxxxxxxx
Investment Counsel, LLC (the "Sub-Adviser").
WHEREAS, Xxxxxxx Variable Series II, 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 Investment Management
Agreement dated November 15, 2004 (the "Advisory Agreement") with the
Trust, pursuant to which the Adviser will act as investment adviser to
the Xxxxxxx Xxxxxxxxx Foreign Value Portfolio (the "Portfolio"), which
is a series of the Trust, and will provide certain management services
with respect to the Portfolio; 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 Portfolio, 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 Portfolio entrusted to it
hereunder (the "Assets"), including the purchase, retention and
disposition of the Assets, in accordance with the Portfolio's
investment objectives, policies and restrictions as stated in the
Portfolio'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. Subject to the foregoing, the Sub-Adviser, as agent
and attorney-in-fact with respect to the Portfolio, when it deems
appropriate and without prior consultation with the Adviser or the
Trust's Board of Trustees, may (a) buy, sell, exchange, convert and
otherwise trade in any stocks, bonds and other securities including
money market instruments, whether the issuer is organized in the United
States or outside the United States, (b) place orders for the execution
of such securities transactions with or through such brokers, dealers
or issuers as the Sub-Adviser may select and (c) purchase, sell,
exchange or convert foreign currency in the spot
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or forward markets as necessary to facilitate transactions in
international securities for the Portfolio.
(b) The Sub-Adviser shall determine the Assets to be purchased or sold
by the Portfolio and will place orders with or through such persons,
brokers or dealers to carry out the policy with respect to brokerage
set forth in the Trust's registration statement and the Portfolio's
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 seek on behalf of the
Portfolio 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 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 Portfolio 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 Portfolio. In no
instance, however, will the Portfolio's Assets be knowingly 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 the Adviser and the Board of
Trustees. The Adviser shall be responsible for furnishing the
Sub-Adviser with a list that identifies other sub-advisers 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 the Trust, the
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, or the Trust's principal underwriter. The
Adviser shall also update the list as needed. The Adviser or its
affiliates may, from time to time, engage other sub-advisers to advise
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 it affiliates with respect to transactions in securities
or other
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assets concerning the Portfolio 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 Portfolio 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
Portfolio and to such other clients.
The Sub-Adviser may buy securities for the Portfolio at the same time
it is selling such securities for another client account and may sell
securities for the Portfolio 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 Portfolio and such other
account if it deems this to be advantageous to both of the accounts
involved.
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 Portfolio and/or broker-dealers
through or with which portfolio transactions on behalf of the Portfolio
may not be effected. The Sub-Adviser shall refrain from purchasing such
securities for the Portfolio or directing any portfolio transaction to
any such broker-dealer on behalf of the Portfolio, 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 subparagraphs (b)(5),
(6), (7), (9), (10) and (11) and paragraph (f) of Rule 31a-1 under the
1940 Act. 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 Portfolio required by Rule
31a-1 under the 1940 Act. 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 1940 Act (including the rules adopted
thereunder) or any exemptive or other relief that the Adviser or the
Trust obtains from the SEC. The Adviser and the Sub-Adviser acknowledge
that records maintained by the Sub-Adviser on behalf of the Portfolio
may be commingled with records
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belonging to the Sub-Adviser and the parties agree, therefore, that
such records maintained on behalf of the Portfolio by the Sub-Adviser
are the joint property of the Portfolio and the Sub-Adviser. The
Sub-Adviser agrees that it will promptly provide to the Portfolio
copies of any records that it maintains on behalf of the Portfolio upon
the Portfolio's reasonable request. The Sub-Adviser agrees to permit
the Adviser, the Trust's officers and its independent public
accountants to inspect and audit such records pertaining to the
Portfolio at reasonable times during regular business hours upon
reasonable advance 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 any such records as are required to be
maintained by it pursuant to this Agreement, and shall provide copies
of said records to any successor sub-adviser upon the termination of
this Agreement (or, if there is no successor sub-adviser, to the
Adviser).
(d) The Sub-Adviser will also make its officers and employees
reasonably available to meet with (via teleconference, video conference
or in person) the officers of the Adviser and the Trust's officers and
Trustees on due notice to review the investments and investment program
of the Portfolio 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 reports on issuers of securities held by the
Portfolio, 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 Portfolio for valuation
purposes in accordance with the process described in the Portfolio's
Prospectus.
(e) The Sub-Adviser shall provide the Portfolio's custodian on each
business day with information relating to all transactions concerning
the Portfolio'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. Adviser shall instruct Custodian to provide Sub-Adviser
with such information, including daily cash balances, as Sub-Adviser
may reasonably request.
(f) The investment management services provided by the Sub-Adviser
under this Agreement are not to be deemed exclusive and the Sub-Adviser
shall be free to render similar services to others, as long as such
services do not impair the services rendered to the Adviser or the
Trust. The Sub-Adviser may also give advice and take action with
respect to any of its other clients or for its own account which may
differ from the timing or nature of action taken by the Sub-Adviser
with respect to the Portfolio. Nothing in this Agreement shall impose
upon the Sub-Adviser any obligation to purchase or sell or to recommend
for purchase or sale, with respect to the Portfolio, any security which
the Sub-
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Adviser, or its shareholders, directors, officers, employees or
affiliates may purchase or sell for its or their own account(s) or for
the account of any other client.
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
Portfolio or the Trust in any way or otherwise be deemed to be an agent
of the Portfolio, 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 Portfolio, the Sub-Adviser will act solely
as investment counsel for such clients and not in any way on behalf of
the Portfolio.
(g) The Sub-Adviser shall promptly notify the Adviser of any financial
condition that is likely to impair the Sub-Adviser's ability to fulfill
its commitment under this Agreement.
(h) The Adviser, subject to concurrence and delegation by the Trust's
Board of Trustees, may determine from time to time whether it or the
Sub-Adviser will be responsible for voting proxies received with
respect to securities held by the Portfolio. The Sub-Adviser shall not
be expected or required to take any action other than the rendering of
investment-related advice with respect to lawsuits involving securities
presently or formerly held in the Portfolio or the issuers thereof,
including actions involving bankruptcy.
(i) Services to be furnished by the Sub-Adviser under this Agreement
may be furnished through the medium of any of the Sub-Adviser's
officers or employees, but the Sub-Adviser has a duty to notify the
Trust and the Adviser promptly of any proposed change in portfolio
manager(s) responsible for the services described in this Section 1.
2. Duties of the Adviser. The Adviser shall continue to have
responsibility for all services to be provided to the Portfolio
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, except
as stated below, 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
of the Board of Trustees of the Trust, 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. The Sub-Adviser
shall not be responsible for compliance with the Trust's constituent
documents, the Prospectus, or the instructions and directions of the
Board of Trustees (each a "Document") unless and until such Document,
and any supplement or amendment thereto, has been provided to the
Sub-Adviser.
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 Agreement and Declaration of Trust, as in effect on the
date of this Agreement and as amended from time to time (herein called
the "Trust Agreement");
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(ii) By-Laws of the Trust; and
(iii) Prospectus of the Portfolio.
(iv) Instructions and directions of the Board of Trustees related to
the management of the Assets.
(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.
(c) Each party will promptly provide the other party supplements and
amendments of the foregoing documents throughout the term of this
Agreement.
3. 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 Investment Advisers Act of
1940, as amended, and has made all necessary notice filings and
obtained all 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 Portfolio's assets it
will use all reasonable efforts to adhere to the Portfolio's investment
objectives, policies and restrictions contained therein.
(c) The Sub-Adviser represents that it will provide the Portfolio with
any amendments to its Code of Ethics and any certifications required by
Rule 17j-1 under the 1940 Act.
(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 Portfolio 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 Portfolio or
the Trust; or (iv) the Portfolio (other than by reason of serving as an
investment adviser to the Portfolio); and (2) to the best knowledge of
the Sub-Adviser, neither the Adviser nor any of its directors or
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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 (iii). The Adviser shall provide
information to Sub-Adviser concerning the identities of such persons
referred to in (1)(i) through (iii) and (2) above to assist Sub-Adviser
in its analysis for purposes of this Section 4(d).
4. 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 is
likely to result in any of these actions, (ii) 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 (iii)
upon having a reasonable basis for believing that, as a result of the
Sub-Adviser's investing the Portfolio's assets, the Portfolio's
investment portfolio has ceased to adhere to the Portfolio's investment
objectives, 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 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.
(c) 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
Portfolio, including without limitation records relating to trading for
their own accounts by employees of the Sub-Adviser who are directly
involved in managing the Portfolio. 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.
5. 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 as full compensation
therefor, a sub-advisory fee at the rate specified in Schedule A which
is attached hereto and made part of this Agreement. The fee will be
calculated based on the average daily net assets of the Portfolio and
will be paid to the Sub-Adviser monthly in arrears within 15 days after
the end of the month for which payment is made. Except as may otherwise
be prohibited by law or regulation (including any then current SEC
staff interpretation), the Sub-Adviser may, in its discretion and from
time to time, waive a portion of its fee.
(b) For purposes of this Section 6, the value of net assets of the
Portfolio shall be computed as required by the 1940 Act and in
accordance with any procedures approved
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by the Board of Trustees for the computation of the value of the net
assets of the Portfolio in connection with the determination of net
asset value of its shares.
6. Expenses. The Sub-Adviser shall bear all expenses (excluding brokerage
costs, custodian fees, auditors fees or other expenses of the Portfolio
to be borne by the Portfolio or the Trust) in connection with the
performance of its services under this Agreement. The Portfolio 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; costs relating to local administration of securities; fees
for any pricing service; the costs of regulatory compliance; and pro
rata costs associated with maintaining the Trust's legal existence and
shareholder relations. All other Portfolio operating expenses not
specifically assumed by the Sub-Adviser hereunder or by the Adviser are
borne by the Portfolio or the Trust.
7. Standard of Care and Liability of Sub-Adviser. The Sub-Adviser will not
be liable for any loss sustained by reason of the adoption of any
investment policy or the purchase, sale, or retention of any security
on the recommendation of the Sub-Adviser, whether or not such
recommendation shall have been based upon its own investigation and
research or upon investigation and research made by any other
individual, firm or corporation, if such recommendation shall have been
made and such other individual, firm, or corporation shall have been
selected with due care and in good faith; but nothing herein contained
will be construed to protect the Sub-Adviser against any liability to
the Adviser, the Portfolio or its shareholders by reason of: (a) the
Sub-Adviser's causing the Assets in the Portfolio to be in violation of
any applicable federal or state law, rule or regulation or any
investment policy or restriction set forth in the Portfolio's
Prospectus or any written guidelines, policies or instruction provided
in writing by the Trust's Board of Trustees or the Adviser, (b) the
Sub-Adviser's causing the Assets in the Portfolio to fail to satisfy
the requirements of Subchapter M and/or Section 817(h) of the Code, or
(c) the Sub-Adviser's willful misfeasance, bad faith or gross
negligence generally in the performance of its duties hereunder or its
reckless disregard of its obligations and duties under this Agreement.
Notwithstanding the above, nothing in this Agreement shall require the
Sub-Adviser to be responsible or liable for compliance with applicable
laws, rules, regulations or requirements with respect to any assets of
the Portfolio that are not subject to Sub-Adviser's management and
control.
8. Disclosure Regarding the Sub-Adviser
(a) The Sub-Adviser has reviewed the disclosure about the Sub-Adviser
contained in the Trust's registration statement 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
registration statement contains, as of the date hereof, no untrue
statement of any material fact and does 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 contained in the Trust's
registration statement that
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becomes untrue in any material respect, (ii) any omission of a material
fact about the Sub-Adviser in the Trust's registration statement which
is required to be stated therein or necessary to make the statements
contained therein not misleading, or (iii) any material reorganization
or material change in the Sub-Adviser, including any change in its
ownership or key employees, including portfolio managers.
9. 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
sufficient to meet its obligations to its clients, including the
Portfolio.
10. Duration and Termination. This Agreement shall become effective upon
its approval by the Trust's Board of Trustees and by the vote of a
majority of the outstanding voting securities of the Portfolio.
This Agreement shall continue in effect until September 30, 2005, and
from year to year thereafter, but only so long as such continuance is
specifically approved at least annually in conformance with the 1940
Act; provided, however, that this Agreement may be terminated with
respect to the Portfolio (a) by the Portfolio at any time, without the
payment of any penalty, by the vote of a majority of Trustees of the
Trust or by the vote of a majority of the outstanding voting securities
of the Portfolio, (b) by the Adviser at any time, without the payment
of any penalty, on not more than 60 days' nor less than 30 days'
written notice to the Sub-Adviser, or (c) by the Sub-Adviser at any
time, without the payment of any penalty, on not less than 90 days'
written notice to the Adviser. This Agreement shall terminate
automatically and immediately in the event of its assignment, or in the
event of a termination of the Advisory Agreement. As used in this
Section 11, the terms "assignment" and "vote of a majority of the
outstanding voting securities" shall have the respective meanings set
forth in the 1940 Act and the rules and regulations thereunder, subject
to such exceptions as may be granted by the SEC under the 1940 Act.
11. Use of Name; Confidentiality. (a) The Sub-Adviser shall not use the
name of the Adviser, the Trust or the Portfolio in any advertisement,
sales literature or other communication to the public except in
accordance with such policies and procedures as shall be mutually
agreed to in writing by the Sub-Adviser and the Adviser. Similarly, the
Adviser agrees that it shall not use the name of the Sub-Adviser in any
advertisement, sales literature or other communication to the public
except in accordance with such polices and procedures as shall be
mutually agreed to in writing by the Adviser and the Sub-Adviser.
(b) Each party agrees that it shall hold in strict confidence all data
and information obtained from another party hereto (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
auditors, or in the opinion of its counsel, applicable law, and
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then only with as much prior written notice to the other party as is
practicable under the circumstances.
12. Governing Law. This Agreement shall be governed by the internal laws of
the State of New York, without regard to conflict of law principles;
provided, however, that nothing herein shall be construed as being
inconsistent with the 1940 Act.
13. 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.
14. 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 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 at: Deutsche Investment Management Americas Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
To the Sub-Adviser at: Xxxxxxxxx Investment Counsel, LLC
000 Xxxx Xxxxxxx Xxxx.
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx, President
15. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings relating to this Agreement's subject
matter. 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 Agreement 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 Portfolio or the Trust.
Where the effect of a requirement of the 1940 Act reflected in any
provision of this Agreement is altered by a rule, regulation or order
of the SEC, whether of special or general application, such provision
shall be deemed to incorporate the effect of such rule, regulation or
order.
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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 XXXXXXXXX INVESTMENT COUNSEL, LLC
MANAGEMENT AMERICAS INC.
By: /s/A. Xxxxxx Xxxxx By: /s/Xxxx X. Xxxxx
----------------------------------------- ----------------------------------------------------
Name: A. Xxxxxx Xxxxx Name: Xxxx X. Xxxxx, CFA
--------------------------------------- --------------------------------------------------
Title: Secretary and Chief Legal Officer Title: President
-------------------------------------- -------------------------------------------------
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Schedule A
to the
Sub-Advisory Agreement
between
Deutsche Investment Management Americas Inc.
and
Xxxxxxxxx Investment Counsel, LLC
Pursuant to Section 6, the Adviser shall pay the Sub-Adviser compensation at an
annual rate as follows:
Net Assets Annualized Rate
---------- ---------------
On the first $50 million 0.625%
On the next $150 million 0.465%
On the next $300 million 0.375%
On amounts over $500 million 0.35%
12
W:/PJC/AGREEMENTS/SUB-ADVISORY (XXXXXXXXX).091404
