EXHIBIT 5.2
SUB-ADVISORY AGREEMENT
Agreement made as of this ___ day of _______, 1996, between BBOI
Worldwide LLC ("BBOI Worldwide"), a Delaware limited liability company, and Bank
of Ireland Asset Management (U.S.) Limited ("BIAM"), an Irish corporation.
WHEREAS, BBOI Worldwide has entered into an Investment Advisory
Agreement (the "Advisory Agreement") with Xxxxxx/BIAM Worldwide Portfolios Trust
("Worldwide Portfolios"), a Delaware business trust and an open-end management
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), with respect to Xxxxxx/BIAM International Portfolio
(the "Portfolio"), a separate series of Worldwide Portfolios; and
WHEREAS, BBOI Worldwide desires to delegate to BIAM its duties and
responsibilities for providing investment advisory services to the Portfolio,
and BIAM is willing to accept such delegation and to render such investment
advisory services.
NOW, THEREFORE, the parties agree as follows:
1. DELEGATION. Pursuant to Section 13 of the Advisory Agreement,
BBOI Worldwide hereby delegates to BIAM all the duties and responsibilities
required to be performed
by BBOI Worldwide for the Portfolio pursuant to Section 2 of the Advisory
Agreement. BIAM hereby accepts such delegation and agrees to perform such
duties and assume such responsibilities, subject to the oversight of BBOI
Worldwide and the trustees of Worldwide Portfolios (the "Trustees"). No
provision of this Agreement shall relieve BBOI Worldwide of its duties or
responsibilities under the Advisory Agreement, and BBOI Worldwide shall
appropriately oversee, monitor and evaluate BIAM's performance of its duties and
responsibilities under this Agreement.
2. FURTHER OBLIGATIONS. In all matters relating to the performance
of this Agreement, BIAM shall act in conformity with Worldwide Portfolios' Trust
Instrument, Bylaws and currently effective registration statement under the 1940
Act and any amendments or supplements thereto (the "Registration Statement") and
with the written policies, procedures and guidelines of the Portfolio, written
instructions from the Trustees based on resolutions duly adopted by the
Trustees, and written instructions from BBOI Worldwide, officers of Worldwide
Portfolios, and/or the Sub-Administrator (as defined in the Advisory Agreement)
and comply with the requirements of the 1940 Act, the Investment Advisers Act of
1940, as amended, the rules thereunder, and all other applicable federal and
state laws and regulations. BBOI Worldwide agrees to provide to BIAM copies of
Worldwide
Portfolios' Trust Instrument, Bylaws, Registration Statement, written policies,
procedures, and guidelines, written instructions of the Trustees based on
resolutions duly adopted by the Trustees, and written instructions from BBOI
Worldwide, officers of Worldwide Portfolios, and the Sub-Administrator, and any
amendments or supplements to any of them at, or, if practicable, before the time
such materials become effective. BIAM may perform its services through any
qualified employee, officer or agent of BIAM, and BBOI Worldwide and Worldwide
Portfolios shall not be entitled to the efforts, advice, recommendations or
judgment of any specific person.
3. OBLIGATIONS OF BBOI WORLDWIDE. BBOI Worldwide shall have the
following obligations under this Agreement:
(a) To keep BIAM continuously and fully informed (or cause the
custodian of the Portfolio's assets to keep BIAM so informed) as to the
composition of the investment portfolio of the Portfolio, cash requirements
and cash available for investment in the Portfolio and the nature of all of
the Portfolio's assets and liabilities;
(b) To furnish BIAM with a certified copy of any financial statement
or report prepared for the Portfolio by certified or independent public
accountants and with copies of any financial statements or reports made to
the Portfolio's investors or to any governmental body or securities
exchange;
(c) To furnish BIAM with any further materials or information which
BIAM may reasonably request to enable it to perform its function under this
Agreement;
(d) To compensate BIAM for its services in accordance with the
provisions of Section 4 hereof.
4. COMPENSATION. BBOI Worldwide shall pay to BIAM for its services
under this Agreement a fee, payable in United States dollars, at an annual rate
of 0.45% of the average daily net asset value of the Portfolio. This fee shall
be computed and accrued daily and payable monthly on the last day of each month
during which or part of which this Agreement is in effect. BIAM reserves the
right to waive or reimburse all or any portion of its fees hereunder. BIAM
hereby waives all fees payable under this Agreement during the four-year period
beginning on the date on which shares of the first series of Xxxxxx/BIAM
Worldwide Funds Trust that invests all of its investable assets in the Portfolio
are first offered to the public (the "Launch Date") and ending on the fourth
anniversary of the Launch Date, or such other shorter period as the Board of
Managers of BBOI Worldwide may determine, PROVIDED that such waiver shall not
apply to any fees for services in respect of the
assets in the Portfolio which are assets of those clients of BIAM designated as
"Converted Clients" on ATTACHMENT A, and FURTHER PROVIDED that such waiver shall
no longer apply as of the date on which BIAM and Xxxxxx Associates, Inc.
("Xxxxxx") agree that The Governor and Company of the Bank of Ireland shall
withdraw its application for approval by the Board of Governors of the Federal
Reserve System for BIAM or a designated affiliate to acquire a 50% interest in
BBOI Worldwide.
5. EXPENSES AND EXCLUDED EXPENSES. BIAM shall pay all its own costs
and expenses incurred in rendering the services required under this Agreement.
Notwithstanding any other provision hereof, it is expressly agreed that BIAM
shall not be responsible to pay, directly or on behalf of the Portfolio, any of
the Portfolio's expenses, including without limitation the expenses described in
Section 7(a) through (j) of the Advisory Agreement, which expenses shall remain
Worldwide Portfolios' own obligation and responsibility to pay.
6. BROKERAGE COMMISSIONS. For purposes of this Agreement, brokerage
commissions paid by the Portfolio upon the purchase or sale of its portfolio
securities shall be considered a cost of securities of the Portfolio and shall
be paid by the Portfolio. Absent instructions from BBOI Worldwide or Worldwide
Portfolios to the contrary, BIAM
shall place all orders for the purchase and sale of securities for the Portfolio
with brokers and dealers selected by BIAM. BIAM is authorized and directed to
place portfolio transactions for the Portfolio only with brokers and dealers who
render satisfactory service in the execution of orders at the most favorable
prices and at reasonable commission rates, PROVIDED, however, that BIAM may pay
a broker an amount of commission for effecting a securities transaction in
excess of the amount of commission another broker would have charged for
effecting that transaction if BIAM determines in good faith that such amount of
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker viewed in terms of either that particular
transaction or the overall responsibilities of BIAM. BIAM is also authorized to
consider sales of shares in any fund investing in the Portfolio as a factor in
selecting broker-dealers to execute portfolio transactions for the Portfolio.
In placing portfolio business with such broker-dealers, BIAM shall seek the best
execution of each transaction. Subject to the terms of this Agreement and the
applicable requirements and provisions of the law, including the 1940 Act and
the Securities Exchange Act of 1934, as amended, and in the event that BIAM or
an affiliate is registered as a broker-dealer, BIAM may select a broker with
which it or any of its
affiliates or the Portfolio is affiliated. BIAM or such affiliated broker may
effect or execute Portfolio securities transactions on an agency basis, whether
on a securities exchange or in the over-the-counter market, and receive
compensation from the Portfolio therefor.
Notwithstanding the foregoing, Worldwide Portfolios shall retain the
right to direct the placement of all portfolio transactions, and BBOI Worldwide
or the Trustees may establish policies or guidelines to be followed by BIAM in
placing portfolio transactions for the Portfolio pursuant to the foregoing
provisions. BIAM shall report on the placement of portfolio transactions in the
prior fiscal quarter at each quarterly meeting of the Trustees. To the extent
consistent with applicable law, purchase or sell orders for the Portfolio may be
aggregated with simultaneous purchase or sell orders for other clients of BIAM.
Whenever BIAM simultaneously places orders to purchase or sell the same security
on behalf of the Portfolio and one or more other clients of BIAM, such orders
will be allocated as to price and amount among all such clients in a manner
reasonably believed by BIAM to be fair and equitable to each client. BBOI
Worldwide and Worldwide Portfolios recognize that, in some cases, this procedure
may adversely affect the results obtained for the Portfolio.
7. TERM. This Agreement shall become effective as of the date first
set forth above and shall continue in effect until the last day of April 1998,
unless sooner terminated in accordance with its terms, and shall continue in
effect from year to year thereafter only so long as such continuance is
specifically approved at least annually by the vote of a majority of the
Trustees who are not parties hereto or interested persons of Worldwide
Portfolios or BBOI Worldwide, cast in person at a meeting called for the
purpose of voting on the approval of the terms of such renewal, and by either
the Trustees or the affirmative vote of a majority of the outstanding voting
securities of the Portfolio.
8. TERMINATION. This Agreement may be terminated at any time,
without penalty, by BBOI Worldwide, the Trustees, or by the holders of interests
in the Portfolio acting by vote of at least a majority of its outstanding voting
securities, provided in any such case that 60 days' advance written notice of
termination be given to BIAM at its principal place of business. This Agreement
may also be terminated by BBOI Worldwide or Worldwide Portfolios if BIAM becomes
unable to discharge its duties and obligations under this Agreement. This
Agreement may be terminated by BIAM at any time, without penalty, by giving
60 days' advance written notice of termination to BBOI Worldwide and to
Worldwide Portfolios.
9. ASSIGNMENT AND AMENDMENTS. This Agreement shall automatically
terminate in the event of its assignment. This Agreement may be amended by the
parties only in a written instrument signed by all parties to this Agreement and
only if such amendment is specifically approved (i) by a majority of the
Trustees, including a majority of the Trustees who are not interested persons of
Worldwide Portfolios, BBOI Worldwide or its affiliates, and (ii) if required by
applicable law, by the affirmative vote of a majority of the outstanding voting
securities in the Portfolio. Notwithstanding the foregoing, Worldwide
Portfolios' Registration Statement and the written policies, procedures and
guidelines, and written instructions from the Trustees based on resolutions duly
adopted by the Trustees referred to in Section 2 hereof may be amended by
Worldwide Portfolios or the Trustees from time to time; PROVIDED, however, that
BIAM shall not be obligated to follow any such amendment until BIAM has received
such amendment in writing from Worldwide Portfolios, the Trustees or from BBOI
Worldwide.
10. LIMITATION OF LIABILITY OF BIAM. BIAM shall not be liable for
any error of judgment or mistake of law or for any loss arising out of any
investment or for any act or
omission taken with respect to the Portfolio, except for willful misfeasance,
bad faith or gross negligence in the performance of its duties, or by reason of
reckless disregard of its obligations and duties hereunder and except to the
extent otherwise provided by law. BIAM shall be entitled to rely upon any
written instructions from the Trustees of Worldwide Portfolios based on
resolutions duly adopted by the Trustees, and shall incur no liability to BBOI
Worldwide, Worldwide Portfolios or the Portfolio in acting upon such written
instructions. In addition, BIAM shall be entitled to rely upon any written
instructions from BBOI Worldwide, the Sub-Administrator or officers of Worldwide
Portfolios, and shall incur no liability to BBOI Worldwide in acting upon such
written instructions. As used in this section, "BIAM" shall include any
affiliate of BIAM performing services for the Portfolio contemplated hereunder
and managers, directors, officers and employees of BIAM and such affiliates.
11. INDEMNIFICATION. BBOI Worldwide hereby indemnifies and holds
harmless BIAM and its officers, directors, shareholders, employees and agents,
and any controlling person thereof, from all losses, charges, claims and
liabilities, and all costs and expenses, including without limitation reasonable
attorneys' fees and disbursements, arising from any action which BIAM takes or
omits to take pursuant to written instructions from BBOI Worldwide, the Sub-
Administrator, or from officers or Trustees of Worldwide Portfolios, provided
that no person shall be indemnified hereunder against any liability to Worldwide
Portfolios or its shareholders (or any expenses incident to such liability)
arising out of such person's own willful misfeasance, bad faith or gross
negligence in the performance of their duties or by reason of their reckless
disregard of their duties or obligations under this Agreement.
BBOI Worldwide acknowledges and agrees that BIAM, as the party to whom
BBOI Worldwide has delegated pursuant to Section 13 of the Advisory Agreement
all of BBOI Worldwide's duties and responsibilities required to be performed by
BBOI Worldwide for the Portfolio pursuant to Section 2 of the Advisory
Agreement, is a person entitled to indemnification by Worldwide Portfolios
pursuant to Section 16 of the Advisory Agreement.
BIAM hereby indemnifies and holds harmless BBOI Worldwide and
Worldwide Portfolios, and each of their Trustees, officers, managers,
shareholders, members, employees and agents, and any controlling person thereof,
from all losses, charges, claims and liabilities, and all costs and expenses,
including without limitation reasonable attorneys' fees and disbursements,
arising out of BIAM's
willful misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of its reckless disregard of its duties or obligations under
this Agreement, provided that no person shall be indemnified hereunder against
any liability to Worldwide Portfolios or its shareholders (or any expenses
incident to such liability) arising out of such person's own willful
misfeasance, bad faith or gross negligence in the performance of their duties or
by reason of their reckless disregard of their duties or obligations under this
Agreement.
12. ACTIVITIES OF BIAM. The investment advisory services provided by
BIAM hereunder are not exclusive, and BIAM is free to render similar services to
others so long as its services under this Agreement are not materially adversely
affected or otherwise materially impaired thereby. Nothing in this Agreement
shall limit or restrict the right of any director, officer, or employee of BIAM
to engage in any other business or to devote his or her time and attention in
part to the management or other aspects of any business, whether of a similar
nature or a dissimilar nature.
13. INDEPENDENT CONTRACTOR. BIAM shall for all purposes hereunder be
deemed to be an independent contractor and shall, unless otherwise provided or
authorized, have no authority to act for or represent BBOI Worldwide, the
Portfolio or Worldwide Portfolios in any way, nor otherwise be deemed an agent
of, partner or joint venturer with, BBOI Worldwide, the Portfolio or Worldwide
Portfolios.
14. THIRD PARTY BENEFICIARY. The parties expressly acknowledge and
agree that Worldwide Portfolios is a third party beneficiary of this Agreement
and that Worldwide Portfolios shall have the full right to xxx upon and enforce
this Agreement in accordance with its terms as if it were a signatory hereto.
15. NOTICES. Any notice or other communication required to be given
pursuant to this Agreement shall be deemed duly given if delivered or mailed by
certified or registered mail, return receipt requested and postage prepaid:
(a) To BBOI Worldwide at:
BBOI Worldwide LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Associates, Inc.,
Xxxxxx X. Xxxxx, President
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) To BIAM at:
Bank of Ireland Asset Management
(U.S.) Limited
00 Xxxxxxxxxxx Xxxxx
Xxxxxx 0, Xxxxxxx
Attention: Xxxxxxx X. Xxxxxx
Phone: 000 000 0 000 0000
Fax: 000 000 0 000 0000
with a copy to:
Bank of Ireland Asset Management
(U.S.) Limited
Two Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
and
Debevoise & Xxxxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. XxxXxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
(c) To Worldwide Portfolios at:
Xxxxxx/BIAM Worldwide Portfolios Trust
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, President
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxx, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
16. CERTAIN DEFINITIONS. As used in this Agreement, the terms "vote
of a majority of the outstanding voting securities," "assignment," "approved at
least annually," and "interested persons" shall have the same meanings as when
used in the 1940 Act (in each case as the 1940 Act is now in effect or hereafter
may be amended) and the rules and regulations thereunder, subject to such
orders, exemptions and interpretations as may be issued by the Securities and
Exchange Commission (the "SEC") under the 1940 Act and as may be then in effect.
Where the effect of a requirement of the federal securities laws reflected in
any provision of this Agreement is made less restrictive by a rule, regulation,
order, interpretation or other authority of the SEC, whether of special or
general application, such provision shall be deemed to incorporate the effect of
such rule, regulation, order, interpretation or other authority.
17. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of New York (without giving effect to the conflicts
of laws principles thereof) and the 1940 Act. To the extent that the applicable
laws of the State of New York conflict with the applicable provisions of the
1940 Act, the latter shall control.
18. MISCELLANEOUS. This Agreement may be executed in two or more
counterparts, which taken together shall constitute one and the same instrument.
The headings in this Agreement are included for convenience of reference only
and in no way define or limit any of the provisions thereof or otherwise affect
their construction or effect. 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.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors.
19. FORM ADV. BBOI Worldwide hereby acknowledges receipt of the Form
ADV, Part II which BIAM represents is the most recent version of such form which
BIAM has filed with the SEC. BIAM will, promptly after filing any amendment to
its Form ADV with the SEC, furnish a copy of such amendment to BBOI Worldwide
and to Worldwide Portfolios.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
BBOI WORLDWIDE LLC
By: Xxxxxx Associates, Inc.,
its Sole Member
By:
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Name:
Title:
BANK OF IRELAND ASSET
MANAGEMENT (U.S.) LIMITED
By:
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Name:
Title:
ATTACHMENT A
CONVERTED CLIENTS
