FORM OF
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this ____ day of ________, 1997, by and between TIP
Institutional Funds, a Delaware business trust (the "Trust"), and Xxxxxx
Investment Partners, Inc. (the "Adviser").
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended, consisting of
several series of units of beneficial interest ("shares"), each having its own
investment policies; and
WHEREAS, the Trust has retained SEI Fund Resources (the
"Administrator") to provide administration of the Trust's operations, subject to
the control of the Board of Trustees;
WHEREAS, the Trust desires to retain the Adviser to render investment
management services with respect to the series set forth in the attached
schedule and such other series as the Trust and the Adviser may agree upon (the
"Portfolios"), and the Adviser is willing to render such services:
NOW, THEREFORE, in consideration of mutual covenants herein contained,
the parties hereto agree as follows:
1. Duties of Adviser. The Trust employs the Adviser to manage the
investment and reinvestment of the assets, and to continuously
review, supervise, and administer the investment program of each of
the Portfolios, to determine in its discretion the securities to be
purchased or sold, to provide the Administrator and the Trust with
records concerning the Adviser's activities which the Trust is
required to maintain, and to render regular reports to the
Administrator and to the Trust's Officers and Trustees concerning
the Adviser's discharge of the foregoing responsibilities.
The Adviser shall discharge the foregoing responsibilities subject
to the control of the Board of Trustees of the Trust and in
compliance with such policies as the Trustees may from time to time
establish, and in compliance with the objectives, policies, and
limitations for each such Portfolio set forth in the Portfolio's
prospectus and statement of additional information as amended from
time to time, and applicable laws and regulations.
The Adviser accepts such employment and agrees, at its own expense,
to render the services and to provide the office space, furnishings
and equipment and the personnel required by it to perform the
services on the terms and for the compensation provided herein.
2. Portfolio Transactions. The Adviser is authorized to select the
brokers or dealers that will execute the purchases and sales of
portfolio securities for the Portfolios and
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is directed to use its best efforts to obtain the best net results
as described from time to time in the Portfolios' Prospectuses and
Statement of Additional Information. The Adviser will promptly
communicate to the Administrator and to the officers and the
Trustees of the Trust such information relating to portfolio
transactions as they may reasonably request.
It is understood that the Adviser will not be deemed to have acted
unlawfully, or to have breached a fiduciary duty to the Trust or be
in breach of any obligation owing to the Trust under this
Agreement, or otherwise, by reason of its having directed a
securities transaction on behalf of the Trust to a broker-dealer in
compliance with the provisions of Section 28(e) of the Securities
Exchange Act of 1934 or as described from time to time by the
Portfolios' Prospectuses and Statement of Additional Information.
3. Compensation of the Adviser. For the services to be rendered by the
Adviser as provided in Sections 1 and 2 of this Agreement, the
Trust shall pay to the Adviser compensation at the rate specified
in the Schedule(s) which are attached hereto and made a part of
this Agreement. Such compensation shall be paid to the Adviser at
the end of each month, and calculated by applying a daily rate,
based on the annual percentage rates as specified in the attached
Schedule(s), to the assets. The fee shall be based on the average
daily net assets for the month involved (less any assets of such
Portfolios held in non-interest bearing special deposits with a
Federal Reserve Bank).
All rights of compensation under this Agreement for services
performed as of the termination date shall survive the termination
of this Agreement.
4. Other Expenses. The Adviser shall pay all expenses of printing and
mailing reports, prospectuses, statements of additional
information, and sales literature relating to the solicitation of
prospective clients. The Trust shall pay all expenses relating to
mailing to existing shareholders prospectuses, statements of
additional information, proxy solicitation material and shareholder
reports.
5. Excess Expenses. If the expenses for any Portfolio for any fiscal
year (including fees and other amounts payable to the Adviser, but
excluding interest, taxes, brokerage costs, litigation, and other
extraordinary costs) as calculated every business day would exceed
the expense limitations imposed on investment companies by any
applicable statute or regulatory authority of any jurisdiction in
which shares of a Portfolio are qualified for offer and sale, the
Adviser shall bear such excess cost. However, the Adviser will not
bear expenses of any Portfolio which would result in the
Portfolio's inability to qualify as a regulated investment company
under provisions of the Internal Revenue Code. Payment of expenses
by the Adviser pursuant to this Section 5 shall be settled on a
monthly basis (subject to fiscal year
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end reconciliation) by a reduction in the fee payable to the
Adviser for such month pursuant to Section 3 and, if such reduction
shall be insufficient to offset such expenses, by reimbursing the
Trust.
6. Reports. The Trust and the Adviser agree to furnish to each other,
if applicable, current prospectuses, proxy statements, reports to
shareholders, certified copies of their financial statements, and
such other information with regard to their affairs as each may
reasonably request.
7. Status of Adviser. The services of the Adviser to the Trust are not
to be deemed exclusive, and the Adviser shall be free to render
similar services to others so long as its services to the Trust are
not impaired thereby. The Adviser shall be deemed to be an
independent contractor and shall, unless otherwise expressly
provided or authorized, have no authority to act for or represent
the Trust in any way or otherwise be deemed an agent of the Trust.
8. Certain Records. Any records required to be maintained and
preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2
promulgated under the Investment Company Act of 1940 which are
prepared or maintained by the Adviser on behalf of the Trust are
the property of the Trust and will be surrendered promptly to the
Trust on request.
9. Limitation of Liability of Adviser. The duties of the Adviser shall
be confined to those expressly set forth herein, and no implied
duties are assumed by or may be asserted against the Adviser
hereunder. The Adviser 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 in carrying out its duties
hereunder, except a loss resulting from 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, except as may otherwise be provided under provisions of
applicable state law or Federal securities law which cannot be
waived or modified hereby. (As used in this Paragraph 9, the term
"Adviser" shall include directors, officers, employees and other
corporate agents of the Adviser as well as that corporation
itself).
10. Permissible Interests. Trustees, agents, and shareholders of the
Trust are or may be interested in the Adviser (or any successor
thereof) as directors, partners, officers, or shareholders, or
otherwise; directors, partners, officers, agents, and shareholders
of the Adviser are or may be interested in the Trust as Trustees,
shareholders or otherwise; and the Adviser (or any successor) is or
may be interested in the Trust as a shareholder or otherwise. In
addition, brokerage transactions for the Trust may be effected
through affiliates of the Adviser if approved by the Board of
Trustees, subject to the rules and regulations of the Securities
and Exchange Commission.
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11. License of Adviser's Name. The Adviser hereby agrees to grant a
license to the Trust for use of its name in the names of the
Portfolios for the term of this Agreement and such license shall
terminate upon termination of this Agreement.
12. Duration and Termination. This Agreement, unless sooner terminated
as provided herein, shall remain in effect until two years from
date of execution, and thereafter, for periods of one year so long
as such continuance thereafter is specifically approved at least
annually (a) by the vote of a majority of those Trustees of the
Trust who are not parties to this Agreement or interested persons
of any such party, cast in person at a meeting called for the
purpose of voting on such approval, and (b) by the Trustees of the
Trust or by vote of a majority of the outstanding voting securities
of each Portfolio; provided, however, that if the shareholders of
any Portfolio fail to approve the Agreement as provided herein, the
Adviser may continue to serve hereunder in the manner and to the
extent permitted by the Investment Company Act of 1940 and rules
and regulations thereunder. The foregoing requirement that
continuance of this Agreement be "specifically approved at least
annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the rules and regulations
thereunder.
This Agreement may be terminated as to any Portfolio at any time,
without the payment of any penalty by vote of a majority of the
Trustees of the Trust or by vote of a majority of the outstanding
voting securities of the Portfolio on not less than 30 days' nor
more than 60 days' written notice to the Adviser, or by the Adviser
at any time without the payment of any penalty, on 90 days' written
notice to the Trust. This Agreement will automatically and
immediately terminate in the event of its assignment. Any notice
under this Agreement shall be given in writing, addressed and
delivered, or mailed postpaid, to the other party at any office of
such party.
As used in this Section 11, the terms "assignment", "interested
persons", and a "vote of a majority of the outstanding voting
securities" shall have the respective meanings set forth in the
Investment Company Act of 1940 and the rules and regulations
thereunder; subject to such exemptions as may be granted by the
Securities and Exchange Commission under said Act.
13. Notice. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient if sent by registered
or certified mail, postage prepaid, addressed by the party giving
notice to the other party at the last address furnished by the
other party to the party giving notice: if to the Trust, at Xxxx,
XX 00000, and if to the Adviser, at 0000 Xxxxxxxxx Xxxxx, Xxxxx
000, Xxxxxx, XX 00000.
14. Severability. 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
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be affected thereby.
15. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Delaware and the applicable provisions of
the 1940 Act. To the extent that the applicable laws of the State
of Delaware, or any of the provisions herein, conflict with the
applicable provisions of the 1940 Act, the latter shall control.
A copy of the Declaration of Trust of the Trust is on file with the Secretary of
the State of Delaware, and notice is hereby given that this instrument is
executed on behalf of the Trustees of the Trust as Trustees, and are not binding
upon any of the Trustees, officers, or shareholders of the Trust individually
but binding only upon the assets and property of the Trust. Further, the
obligations of the Trust with respect to any one Portfolio shall not be binding
upon any other Portfolio.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the day and year first written above.
TIP INSTITUTIONAL FUNDS
By:_____________________________
Attest:_________________________
XXXXXX INVESTMENT PARTNERS, INC.
By:_____________________________
Attest:_________________________
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Schedule A dated ___________, 1997
to the
Investment Advisory Agreement
dated ____________ 1997
between
TIP Institutional Funds
and
Xxxxxx Investment Partners, Inc.
Pursuant to Article 3, the Trust shall pay the Adviser compensation at an annual
rate as follows:
Portfolio Fee (in basis points)
--------------------- ---------------------
Micro Cap Growth Fund ____% of the average daily net assets
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