SUB-INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of the 1st day of May, 2003 by and between GOTHAM ADVISORS,
INC. a corporation organized under the laws of the State of Delaware and having
its principal place of business in New York, New York (the "Sub-Advisor") and
XXX XXX ASSOCIATES CORPORATION, a corporation organized under the laws of the
State of Delaware and having its principal place of business in New York, New
York (the "Advisor").
WHEREAS, Van Eck Worldwide Insurance Trust (the "Trust") is engaged in business
as an open-end investment company and is so registered under the Investment
Company Act of 1940, as it is amended from time to time ("1940 Act"); and
WHEREAS, the Sub-Advisor is engaged principally in the business of rendering
investment management services and is registered under the Investment Advisers
Act of 1940, as it is amended from time to time ("Advisors Act"); and
WHEREAS, the Trust is authorized to issue shares of beneficial interest in
separate series with each such series representing interests in a separate
portfolio of securities and other assets; and
WHEREAS, the Trust offers shares in one of such series, namely, Worldwide
Absolute Return Fund (the "Fund") and invests the proceeds in securities and
other assets; and
WHEREAS, the Trust has retained the Advisor to render management and advisory
services; and
WHEREAS, the Advisor desires to retain the Sub-Advisor to render investment
advisory and other services hereunder to the Fund in respect to the portion of
the Fund's assets as may, from time to time, be allocated by the Advisor to the
Sub-Advisor (the "Allocated Assets") and the Sub-Advisor is willing to do so.
NOW, THEREFORE, WITNESSETH:
That it is hereby agreed between the parties hereto as follows:
1. APPOINTMENT OF SUB-ADVISOR
With respect to the Allocated Assets the Advisor hereby appoints the
Sub-Advisor to act as investment advisor to the Fund for the period and on the
terms herein set forth. The Sub-Advisor accepts such appointment and agrees to
render the services herein set forth, for the compensation herein provided. So
long as the Sub-Advisor serves as investment advisor to the Fund pursuant to
this Agreement, the obligation of the Advisor under this Agreement with respect
to the Fund shall be, subject in any event to the control of the Board of
Trustees of the Trust (the "Board"), to allocate and reallocate the Fund's
assets among the Sub-Advisor, the Advisor and other sub-advisors as the Advisor,
in its sole discretion, deems appropriate. Advisor will determine and review
with Sub-Advisor the investment policies of the Fund; and, with respect to the
Allocated Assets, the Sub-Advisor shall have the obligation of furnishing
continuously an investment program and making investment decisions for the Fund,
adhering to applicable investment objectives, policies and restrictions and
placing all orders for the purchase and sale of portfolio securities for the
Fund and such other services set forth in Section 2 hereof. The Advisor will
compensate the Sub-Advisor for its services to the Fund. The Advisor or the
Fund, subject to the terms of this Agreement, may terminate the services of the
Sub-Advisor at any time in their sole discretion, and the Advisor shall at such
time assume the responsibilities of the Sub-Advisor unless and until a successor
investment advisor is selected.
2. DUTIES OF SUB-ADVISOR
With respect to the Allocated Assets only, the Sub-Advisor, at its own
expense, shall furnish the following services and facilities to the Trust:
(a) INVESTMENT PROGRAM. The Sub-Advisor will (i) furnish continuously an
investment program for the Fund, (ii) determine (subject to the overall
supervision and review of the Board and the Advisor) what investments hall be
purchased, held, sold or exchanged and what portion, if any, of the Allocated
Assets shall be held uninvested, and (iii) make changes on behalf of the Fund in
the investments. The Sub-Advisor will provide the services hereunder in
accordance with the Fund's investment objectives, policies and restrictions as
stated in the then current prospectus and statement of additional information
which is part of the Trust's Registration Statement filed with the Securities
and Exchange Commission, as amended from time to time, (together, the
"Registration Statement"), along with copies of the Trust's Master Trust
Agreement and By-laws as they may be amended from time to time, copies of which
shall be sent to the Sub-Advisor by the Advisor. The Sub-Advisor also will
manage, supervise and conduct such other affairs and business of the Trust and
matters incidental thereto, as the Sub-Advisor and the Trust agree, subject
always to the control of the Board and to the provisions of the Master Trust
Agreement of the Trust, the Trust's By-laws and the 1940 Act. The Sub-Advisor
will provide the services under this Agreement so that the Allocated Assets will
qualify as a regulated investment company under sub-chapter M and will be
"adequately diversified" as defined in Section 817(h) of the Internal Revenue
Code of 1986, as it may be amended from time to time. With respect to the
services provided by the Sub-Advisor under this Agreement, it shall be
responsible for compliance with all applicable laws, rules and regulations.
Sub-Advisor will adopt, or has adopted, and will maintain procedures reasonably
designed to ensure compliance.
(b) OFFICE SPACE AND FACILITIES. The Sub-Advisor will arrange to furnish office
space, all necessary office facilities, simple business equipment, supplies,
utilities, and telephone service required for managing the Allocated Assets.
(c) PERSONNEL. The Sub-Advisor shall provide executive and clerical personnel
for managing the Allocated Assets, and shall compensate officers and Trustees of
the Trust or Fund if such persons are also employees of the Sub-Advisor or its
affiliates, except as otherwise provided herein.
(d) PORTFOLIO TRANSACTIONS. All orders placed by the Sub-Advisor for the
purchase and sale of portfolio securities shall be for the account of the Fund
with brokers or dealers selected by the Sub-Advisor. Although the Fund will pay
the actual transaction costs, including without limitation brokerage commissions
on portfolio transactions in accordance with this Paragraph 2(d). In executing
portfolio transactions and selecting brokers or dealers, the Sub-Advisor will
use its best efforts to seek on behalf of the Fund the best overall terms
available. In assessing the best overall terms available for any transaction,
the Sub-Advisor shall consider all factors it deems relevant, including, without
limitation, 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 (for the specific
transaction and on a continuing basis). In evaluating the best overall terms
available and in selecting the broker or dealer to execute a particular
transaction, the Sub-Advisor may also consider the brokerage and research
services (as those terms are defined in Section 28(e) of the Securities Exchange
Act of 1934) provided to the Sub-Advisor or an affiliate of the Sub-Advisor in
respect of accounts over which it exercises investment discretion. The
Sub-Advisor is authorized to pay to a broker or dealer who provides such
brokerage and research services a commission for executing a portfolio
transaction which is in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction if the Sub-Advisor
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 all of the
accounts over which investment discretion is so exercised by the Sub-Advisor or
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its affiliates. Nothing in this Agreement shall preclude the combining of orders
for the sale or purchase of securities or other investments with other accounts
managed by the Sub-Advisor or its affiliates provided that the Sub-Advisor does
not favor any account over any other account and provided that any purchase or
sale orders executed contemporaneously shall be allocated in an equitable manner
among the accounts involved in accordance with procedures adopted by the
Sub-Advisor. The Sub-Adviser is authorized to allocate the orders placed by it
on behalf of the Fund to the Advisor, Sub-Advisor, or another of the Fund's
Sub-Advisor, affiliate thereof that is registered as a broker-dealer with the
SEC, in compliance with Rule 17e-1 procedures that the Trust's Board of Trustees
shall adopt from time to time. The Sub-Adviser agrees that it will not consult
with any other investment adviser to the Fund concerning transactions on behalf
of the Fund.
(e) In connection with the purchase and sale of securities for the Fund, the
Sub-Advisor will arrange for the transmission to the custodian and record
keeping agent for the Trust on a daily basis, such confirmation, trade tickets,
and other documents and information, including, but not limited to, Cusip,
Sedol, or other numbers that identify securities to be purchased or sold on
behalf of the Fund, as may be reasonably necessary to enable the custodian and
record keeping agent to perform its administrative and record keeping
responsibilities with respect to the Allocated Assets. With respect to portfolio
securities to be purchased or sold through the Depository Trust Company, the
Sub-Advisor will arrange for the automatic transmission of the confirmation of
such trades to the Fund's custodian and record keeping agent.
(f) The Sub-Advisor will monitor on a daily basis the determination by the
custodian and record keeping agent for the Fund of the valuation of portfolio
securities and other investments. The Sub-Advisor, or its agent, will assist the
custodian and record keeping agent for the Fund in determining or confirming,
consistent with the procedures and policies stated in the Registration Statement
for the Trust, the value of any portfolio securities or other assets for which
the custodian and record keeping agent seek assistance from, or identifies for
review, the Sub-Advisor. The Sub-Advisor, or its agent, shall assist the Board
in determining fair value of such securities or assets for which market
quotations are not readily available.
(g) The Sub-Advisor, or its agent, will provide the Trust or the Advisor with
all of the Fund's investment records and ledgers maintained by the Sub-Advisor
(which shall not include the records and ledgers maintained by the custodian and
record keeping agent for the Trust) as are necessary to assist the Trust and the
Advisor to comply with requirements of the 1940 Act and the Advisers Act as well
as other applicable laws and may retain a copy. The Sub-Advisor, or its agent,
will furnish to regulatory authorities having the requisite authority any
information or reports in connection with such services which may be requested
in order to ascertain whether the operations of the Trust are being conducted in
a manner consistent with applicable laws and regulations.
(h) The Sub-Advisor will provide reports to the Board for consideration at
meetings of the Board on the investment program for the Fund and the issues and
securities represented in the Fund's portfolio, and will furnish the Board with
respect to the Fund such periodic and, at the Fund's expense, special reports as
the Trustees or the Advisor may reasonably request.
(i) In managing the Fund and carrying out its obligations under this Agreement,
the Sub-Advisor shall be entitled to receive and act upon advice of counsel to
the Trust, counsel to the Advisor or counsel to the Sub-Advisor.
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3. EXPENSES OF THE TRUST
Except as provided in sections 2(d) and (h) above, the Sub-Advisor shall assume
and pay all of its own costs and expenses related to providing an investment
program for the Fund. The Fund shall be responsible for all its own expenses.
4. SUB-ADVISORY FEE
For the services and facilities to be provided to the Fund by the Sub-Advisor as
provided in Paragraph 2 hereof, the Advisor shall pay the Sub-Advisor a fee,
payable monthly, at the annual rate of 2.15% (two and fifteen one hundredths per
cent) of the Fund's average daily net Allocated Assets from the Advisory fee it
receives from the Fund, as determined by the Trust or its third party
administrator in accordance with procedures established, from time to time, by
or under the direction of the Board. The Trust shall not be liable for the
obligation of the Advisor to make payment to the Sub-Advisor.
5. REPRESENTATIONS, COVENANTS AND WARRANTIES
(a) The Advisor hereby represents and warrants as follows:
(1) That it is registered with the Securities and Exchange
Commission as an investment advisor under the Advisers Act,
and such registration is current, complete and in full
compliance with all applicable provisions of the Advisers Act
and the rules and regulations thereunder;
(2) That it has all the requisite authority to enter into,
execute, deliver and perform its obligations under this
Agreement; and
(3) Its performance of its obligations under this Agreement does
not conflict with any law, regulation or order to which it is
subject.
(b) The Advisor hereby covenants and agrees that, so long as this Agreement
shall remain in effect:
(1) It shall maintain its registration in good standing as an
investment adviser under the Advisers Act, and such
registration shall at all times remain current, complete and
in full compliance with all applicable provisions of the
Advisers Act and the rules and regulations thereunder;
(2) Its performance of its obligations under this Agreement does
not conflict with any law, regulation or order to which it is
subject; and
(3) It shall at all times fully comply with the Advisers Act, the
1940 Act, all applicable rules and regulations under such Acts
and all other applicable law.
(c) The Sub-Advisor hereby represents and warrants, with respect to the
Allocated Assets, as follows:
(1) That it is registered with the Securities and Exchange
Commission as an investment advisor under the Advisers Act,
and such registration is current, complete and in full
compliance with all applicable provisions of the Advisers Act
and the rules and regulations thereunder;
(2) That it has all the requisite authority to enter into,
execute, deliver and perform its obligations under this
Agreement; and
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(3) Its performance of its obligations under this Agreement does
not conflict with any law, regulation or order to which it is
subject.
(d) The Sub-Advisor hereby covenants and agrees, with respect to the
Allocated Assets, that, so long as this Agreement shall remain in effect:
(1) It shall maintain its registration in good standing as an
investment advisor under the Advisers Act, and such
registration shall at all times remain current, complete and
in full compliance with all applicable provisions of the
Advisers Act and the rules and regulations thereunder;
(2) Its performance of its obligations under this Agreement does
not conflict with any law, regulation or order to which it is
subject;
(3) It shall at all times fully comply with the Advisers Act, the
1940 Act, all applicable rules and regulations under such Acts
and all other applicable law; and
(4) It shall promptly notify the Advisor and the Fund upon
occurrence of any event that might disqualify or prevent it
from performing its duties under this Agreement. It further
agrees to notify the Advisor and the Fund promptly with
respect to written material that has been provided to the Fund
or the Advisor by the Sub-Advisor for inclusion in the
Registration Statement, or any supplement or amendment
thereto, or, if written material has not been provided, with
respect to the information pertaining to the Sub-Advisor or
Sub-Advisor's services under this Agreement contained in the
Registration Statement, or any supplement or amendment
thereto, reviewed by the Sub-Advisor, in either case, of any
untrue statement of a material fact or of any omission of any
statement of a material fact which is required to be stated
therein or is necessary to make the statements contained
therein not misleading.
6. TRUST TRANSACTIONS
The Sub-Advisor agrees that neither it nor any of its officers,
directors, employees or agents will take any long- or short-term position in the
shares of the Trust; provided, however, that such prohibition shall not prevent
the purchase of shares of the Trust by any of the persons above described for
their account and for investment at the price (net asset value) at which such
shares are available to the public at the time of purchase or as part of the
initial capital of the Trust.
7. RELATIONS WITH TRUST
Subject to and in accordance with the Master Trust Agreement and ByLaws
of the Trust, the Articles of Incorporation and By-Laws of the Advisor and
Sub-Advisor and any applicable law, rule or regulation, it is understood (i)
that Trustees, officers, agents and shareholders of the Trust are or may be
interested in the Sub-Advisor (or any successor thereof) as directors, officers,
or otherwise; (ii) that directors, officers, agents and shareholders of the
Sub-Advisor are or may be interested in the Trust as Trustees, officers,
shareholders or otherwise; and; (iii) that the Sub-Advisor is or may be
interested in the Trust as a shareholder or otherwise and that the effect of any
such adverse interests shall be governed by said Master Trust Agreement, By-laws
and any applicable law, rule or regulation.
8. LIABILITY OF ADVISOR, SUB-ADVISOR AND OFFICERS AND TRUSTEES OF THE
TRUST
Neither the Advisor, Sub-Advisor nor any of their officers, directors,
employees, agents or controlling persons, or assigns or Trustees or officers of
the Trust shall be liable for any error of judgment or law, or for any loss
suffered by the Trust or its shareholders in connection with the matters to
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which this Agreement relates, except that no provision of this Agreement shall
be deemed to protect the Advisor, Sub-Advisor or such persons against any
liability, to the Trust or its shareholders to which the Advisor or Sub-Advisor
might otherwise be subject by reason of any willful misfeasance, bad faith or
gross negligence in the performance of its duties or the reckless disregard of
its obligations and duties under this Agreement.
9. INDEMNIFICATION
(a) Not withstanding Section 8 of the Agreement, the Advisor agrees to indemnify
and hold harmless the Sub-Advisor, any affiliated person of the Sub-Advisor, and
each person, if any, who, within the meaning of Section 15 of the Securities Act
of 1933 ("1933 Act") controls ("Controlling Person") the Sub-Advisor (all of
such persons being referred to as "Sub-Advisor Indemnified Persons") against any
and all losses, claims, damages, liabilities (excluding salary charges of
employees, officers or partners of the Sub-Advisor), or litigation (including
legal and other) expenses to which a Sub-Advisor Indemnified Person may become
subject under the 1933 Act, the 1940 Act, Advisers Act, under any other statute,
at common law or otherwise, arising out of the Advisor's responsibilities to the
Trust which (1) may be based upon any untrue statement or alleged untrue
statement of a material fact supplied by, or which is the responsibility of, the
Advisor and contained in the Registration Statement covering shares of the Fund
or any amendment thereof or any supplement thereto, or the omission or alleged
omission or failure to state therein a material fact known or which should have
been known to the Advisor and was required to be stated therein or necessary to
make the statements therein not misleading, unless such statement or omission
was made in reliance upon information furnished to the Advisor or the Trust or
to any affiliated person of the Advisor by a Sub-Advisor Indemnified Person; or
(2) may be based upon a failure to comply with, or a breach of, any provision of
this Agreement by the Advisor provided however, that in no case shall the
indemnity in favor of the Sub-Advisor Indemnified Person be deemed to protect
such person against any liability to which any such person would otherwise be
subject by reason of any misfeasance or negligence in the discharge of its
obligations and the performance of its duties under this Agreement.
(b) Notwithstanding Section 8 of this Agreement, the Sub-Advisor agrees to
indemnify and hold harmless the Advisor, any affiliated person of the Advisor,
and each controlling person of the Advisor (all of such persons being referred
to as "Advisor Indemnified Persons") against any and all losses, claims,
damages, liabilities (excluding salary charges of employees, officers or
partners of the Advisor), or litigation (including legal and other) expenses to
which an Advisor Indemnified Person may become subject under the 1933 Act, 1940
Act, Advisers Act, under any other statute, at common law or otherwise, arising
out of the Sub-Advisor's responsibilities as sub-investment adviser to the Fund
which (1) may be based upon any untrue statement or alleged untrue statement of
a material fact supplied in writing by the Sub-Advisor for inclusion in the
Registration Statement covering shares of the Fund, or any amendment thereof or
any supplement thereto, or, with respect to such material fact so supplied by
the Sub-Advisor, the omission or alleged omission or failure to state therein a
material fact known or which should have been known to the Sub-Advisor and was
required to be stated therein or necessary to make the statements therein not
misleading, unless such statement or omission was made in reliance upon
information furnished to the Sub-Advisor, or any affiliated person of the
Sub-Advisor by an Advisor Indemnified Person; or (2) may be based upon a failure
to comply with, or a breach of any provision of this Agreement by the
Sub-Advisor provided however, that in no case shall the indemnity in favor of an
Advisor Indemnified Person be deemed to protect such person against any
liability to which any such person would otherwise be subject by reason of
misfeasance or negligence in the discharge of its obligations and the
performance of its duties under this Agreement.
(c) Neither the Advisor nor the Sub-Advisor shall be liable under this Section
with respect to any claim made against an Advisor Indemnified Person or
Sub-Advisor Indemnified Person (together "Indemnified Person" or each an
"Indemnified Person") unless such Indemnified Person shall have notified the
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indemnifying party in writing within a reasonable time after the summons or
other first legal process giving information of the nature of the claim shall
have been served upon such Indemnified Person (or such Indemnified Person shall
have received notice of such service on any designated agent), but failure to
notify the indemnifying party of any such claim shall not relieve the
indemnifying party from any liability which it may have to the Indemnified
Person against whom such action is brought otherwise than on account of this
Section. In case any such action is brought against the Indemnified Person, the
indemnifying party will be entitled to participate, at its own expense, in the
defense thereof or, after notice to the Indemnified Person, to assume the
defense thereof, with counsel satisfactory to the Indemnified Person. If the
indemnifying party assumes the defense and the selection of counsel by the
indemnifying party to represent both the Indemnified Person and the indemnifying
party would result in a conflict of interests and would not, in the reasonable
judgment of the Indemnified Person, adequately represent the interests of the
Indemnified Person, the indemnifying party will at its own expense, assume the
defense with counsel to the indemnifying party and, also at its own expense,
with separate counsel to an Indemnified Person which counsel shall be
satisfactory to the indemnifying party and the Indemnified Person. The
Indemnified Person will bear the fees and expenses of any additional counsel
retained by it, and the indemnifying party shall not be liable to the
Indemnified Person under this Agreement for any legal or other expenses
subsequently incurred by the Indemnified Person independently in connection with
the defense thereof other than reasonable costs of investigation. The
indemnifying party shall not have the right to compromise or settle the
litigation without the prior written consent of the Indemnified Person if the
compromise or settlement results, or may result in a finding of wrongdoing on
the part of the Indemnified Person.
(d) The parties agree not to, directly or through an affiliate, make any claim
against an indemnifying party hereunder, for any special, indirect or
consequential damages in respect of any breach or wrongful conduct (whether the
claim therefore is based on contract, tort or duty imposed by the law) in
connection with, arising out of or in any way related to the omission or event
occurring in connection therewith, except to the extent such claims or damages
result from the negligence or willful misconduct of such indemnifying party.
10. DURATION AND TERMINATION OF THIS AGREEMENT
(a) DURATION. This Agreement shall become effective on the date hereof unless
terminated as herein provided, this Agreement shall remain in full force and
effect until April 30, 2004 and shall continue in full force and effect for
periods of one year thereafter so long as such continuance is approved at least
annually (i) by either the Trustees of the Trust or by vote of a majority of the
outstanding voting shares (as defined in the 0000 Xxx) of the Trust, and (ii) in
either event by the vote of a majority of the Trustees of the Trust who are not
parties to this Agreement or "interested persons" (as defined in the 0000 Xxx)
of any such party, cast in person at a meeting called for the purpose of voting
on such approval.
(b) TERMINATION. This Agreement may be terminated at any time, without payment
of any penalty, by vote of the Trustees of the Trust or by vote of a majority of
the outstanding voting securities (as defined in the 1940 Act), or by the
Advisor or Sub-Advisor or, on sixty (60) days written notice to the other party.
(c) AUTOMATIC TERMINATION. This Agreement shall automatically and immediately
terminate in the event of its "assignment" as defined in the 1940 Act.
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11. CONFIDENTIALITY
(a) The parties understand that proprietary and confidential information will,
from time to time, be exchanged. Proprietary and confidential information may
include, but is not limited to, client lists, business and investment
strategies, data compilations, financial statements and other information about
the Fund, the Advisor or Sub-Advisor; this information shall be deemed
privileged and confidential if it is clearly designated in writing as such at
the time it is exchanged or designated at a later time ("Confidential
Information"), provided that disclosure of Confidential Information prior to the
designation shall not constitute a breach of this provision. Each party agrees
not to disclose or disseminate Confidential Information without the written
approval of the other party. Further, the parties acknowledge that Confidential
Information shall be kept secret and confidential for a period of one (1) year
from the date of receipt or any update thereto, unless a later date is specified
in writing.
(b) Confidential Information shall exclude any material that is (i) lawfully
within the recipient's possession prior to the date of this Agreement and not
subject to duty of confidentiality; (ii) voluntarily disclosed by a third-party
so long as this third-party does not breach any obligation of confidentiality
with respect to such information; (iii) is generally known or revealed to the
public through no act or omission of the recipient; (iv) independently developed
by the recipient without use or reference to the proprietary or confidential
information of the other party; (v) is requested by a any Federal or State
regulatory body, court, association, authority or agency such as the National
Association of Securities Dealers or the Securities and Exchange Commission; or
(vi) has not been specifically designated as Confidential Information in writing
by the party claiming confidentiality.
12. PRIOR AGREEMENT SUPERSEDED
This Agreement supersedes any prior agreement relating to the subject
matter hereof between the parties.
13. MISCELLANEOUS
(a) This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(b) If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby.
14. USE OF NAME
(a) It is understood that the name "Xxx Xxx" or any derivative thereof or logo
associated with that name is the valuable property of the Advisor and its
affiliates, and that the Trust and Sub-Advisor have the right to use such name
(or derivative or logo) only with the approval of the Advisor and only so long
as the Advisor is Advisor to the Fund. Upon termination of the Sub-Advisor
Investment Advisory and Management Agreement between the Trust and the Advisor,
the Sub-Advisor shall forthwith cease to use such name (or derivative or logo).
(b) It is understood that the name "Gotham", "Xxxxx" and "XxXxxxx" or any
derivative thereof or logo associated with that name is the valuable property of
the Sub-Advisor and its affiliates and that the Advisor, Trust and/or Fund have
the right to use such name (or derivative or logo) in offering materials of the
Trust with the approval of the Sub-Advisor and for so long as the Sub-Advisor is
investment advisor to the Fund. Upon termination of this Agreement the Trust and
Advisor shall forthwith cease to use such name (or derivative or logo).
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15. LIMITATION OF LIABILITY
The term "Xxx Xxx Worldwide Insurance Trust" means and refers to the
Trustees from time to time serving under the Master Trust Agreement of the Trust
dated January 7, 1986 as the same may subsequently thereto have been, or
subsequently hereto be amended. It is expressly agreed that the obligations of
the Trust hereunder shall not be binding upon any Trustees, shareholders,
nominees, officers, agents or employees of the Trust, personally, but bind only
the assets and property of the Trust, as provided in the Master Trust Agreement
of the Trust.
16. SERVICES NOT EXCLUSIVE
It is understood that the services of the Sub-Advisor are not
exclusive, and nothing in this Agreement shall prevent the Sub-Advisor (or its
affiliates) from providing similar services to other clients, including
investment companies (whether or not their investment objectives and policies
are similar to those of the Fund) or from engaging in other activities.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first set forth above:
XXX XXX ASSOCIATES CORPORATION GOTHAM ADVISORS, INC.
Attest: Attest:
By: /s/ Xxx xxx Xxx By:/s/ Xxxxxx X. Xxxxx
------------------------------- --------------------------------
Xxx xxx Xxx Xxxxxx X. Xxxxx
President President
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XXX XXX ASSOCIATES CORPORATION
00 XXXX XXXXXX
XXX XXXX, XX 00000
May 1, 2003
Xxxxx Xxxxxx
Gotham Advisors, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Sub-Investment Advisory Agreement dated as of May 1, 2003 ("Agreement")
Ladies and Gentlemen:
The Agreement between Xxx Xxx Associates Corporation and Gotham Advisors,
Inc. is amended by adding a Section 14(c) as follows:
"(c) The Advisor agrees that neither it nor its affiliated persons shall
give any information or make any representations or statements to the
public in connection with the sale of shares of the Fund concerning the
Sub-Advisor other than the information or representations contained in the
Registration Statement, in reports, proxy statements for the Trust, as
provided by Sub-Adviser in writing for such use, or in sales literature or
other promotional material, approved in writing in advance by the
Sub-Advisor, except with the prior written permission of the Sub-Advisor.
The parties agree that in the event that the Advisor or an affiliated
person of the Advisor sends sales literature or other promotional material
to the Sub-Advisor for its written approval and the Sub-Advisor has not
commented within 5 (five) business days, the Sub-Advisor shall be deemed
to have consented to such use and distribution and the Advisor and its
affiliated persons may use and distribute such sales literature or other
promotional material, provided that copies of such sales literature or
other promotional material shall have been sent to Xxxxx Xxxxxx and Xxxxx
Xxxxxxxxx, officers of the Sub-Advisor."
The parties acknowledge that its obligations under this document are in
addition to any obligations that may be set forth in the Agreement.
Each party acknowledges that it has carefully reviewed what has been set
forth in this document.
Very truly yours,
/s/ Xxx xxx Xxx
Xxx xxx Xxx, Executive Vice President
Xxx Xxx Associates Corporation
ACCEPTED AND AGREED:
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx - Vice President
Gotham Advisors, Inc.
