Exhibit 5.5
SUB-ADVISORY AGREEMENT
WITH RESPECT TO THE
XXXXXX/BIAM IPT - INTERNATIONAL FUND
Agreement made as of this ___ day of _________________, 1997,
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 Institutional
Products Trust (the "Trust"), 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 IPT - International Fund (the "Fund"), a separate series
of the Trust; and
WHEREAS, BBOI Worldwide desires to delegate to BIAM its duties
and responsibilities for providing investment advisory services to the
Fund, 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
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Agreement, BBOI Worldwide hereby delegates to BIAM all the duties and
responsibilities required to be performed by BBOI Worldwide for the
Fund 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 the Trust (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
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performance of this Agreement, BIAM shall act in conformity with the
Trust's 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 Fund, written instructions from the
Trustees based on resolutions duly adopted by the Trustees, and
written instructions from BBOI Worldwide, officers of the Trust,
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 the Trust's 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 the Trust, 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 the Trust shall not be entitled to the efforts,
advice, recommendations or judgment of any specific person.
3. Obligations of BBOI Worldwide. BBOI Worldwide shall have
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the following obligations under this Agreement:
(a) To keep BIAM continuously and fully informed (or cause
the custodian of the Fund's assets to keep BIAM so informed) as
to the composition of the investment portfolio
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of the Fund, cash requirements and cash available for investment
in the Fund and the nature of all of the Fund's assets and
liabilities;
(b) To furnish BIAM with a certified copy of any financial
statement or report prepared for the Fund by certified or
independent public accountants and with copies of any financial
statements or reports made to the Fund'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
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services under this Agreement a fee, payable in United States dollars,
at an annual rate of 0.40% of the average daily net asset value of the
Fund. 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 period
beginning on the date hereof and ending on October 15, 2000, or such
other shorter period as the Board of Managers of BBOI Worldwide may
determine.
5. Expenses and Excluded Expenses. BIAM shall pay all its own
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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 Fund, any of the Fund's expenses, including
without limitation the expenses described
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in Section 7(a) through (j) of the Advisory Agreement, which expenses
shall remain the Trust's own obligation and responsibility to pay.
6. Brokerage Commissions. For purposes of this Agreement,
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brokerage commissions paid by the Fund upon the purchase or sale of
its portfolio securities shall be considered a cost of securities of
the Fund and shall be paid by the Fund. Absent instructions from BBOI
Worldwide or the Trust to the contrary, BIAM shall place all orders
for the purchase and sale of securities for the Fund with brokers and
dealers selected by BIAM. BIAM is authorized and directed to place
portfolio transactions for the Fund 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,
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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 variable insurance
contracts that permit allocation of contract values to the Fund as a
factor in selecting broker-dealers to execute portfolio transactions
for the Fund. 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 Fund is affiliated.
BIAM or such affiliated broker may effect or execute Fund securities
transactions on an agency basis, whether on a securities exchange or
in the over-the-counter market, and receive compensation from the Fund
therefor. Notwithstanding the foregoing, the Trust 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 Fund
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 Fund 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 Fund 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 the Trust recognize
that, in some cases, this procedure may adversely affect the results
obtained for the Fund.
7. Term. This Agreement shall become effective as of the date
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first set forth above and shall continue in effect until the last day
of April 1999, 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 the Trust 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 Fund.
8. Termination. This Agreement may be terminated at any time,
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without penalty, by BBOI Worldwide, the Trustees, or by the holders of
interests in the Fund acting by vote of at least a majority of its
outstanding voting securities, provided in any such case that 60 days'
advance written
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notice of termination be given to BIAM at its principal place of
business. This Agreement may also be terminated by BBOI Worldwide or
the Trust 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 the Trust.
9. Assignment and Amendments. This Agreement shall
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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
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majority of the Trustees who are not interested persons of the Trust,
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 Fund. Notwithstanding the foregoing, the Trust's
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 the Trust or the Trustees from time to time;
provided, however, that BIAM shall not be obligated to follow any such
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amendment until BIAM has received such amendment in writing from the
Trust, the Trustees or from BBOI Worldwide.
10. Limitation of Liability of BIAM. BIAM shall not be liable
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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 Fund, 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 the Trust based on
resolutions duly adopted by the Trustees, and shall incur no
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liability to BBOI Worldwide, the Trust or the Fund 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 the Trust, 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 Fund contemplated hereunder and managers, directors,
officers and employees of BIAM and such affiliates.
11. Indemnification. BBOI Worldwide hereby indemnifies and
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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 the Trust, provided
that no person shall be indemnified hereunder against any liability to
the Trust 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 Fund pursuant to
Section 2 of the Advisory Agreement, is a person entitled to
indemnification by the Trust pursuant to Section 16 of the Advisory
Agreement.
BIAM hereby indemnifies and holds harmless BBOI Worldwide and the
Trust, and each of their Trustees, officers, managers, shareholders,
members, employees and agents, and any controlling
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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 the Trust 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
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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
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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 Fund or the Trust in any way, nor
otherwise be deemed an agent of, partner or joint venturer with, BBOI
Worldwide, the Fund or the Trust.
14. Third Party Beneficiary. The parties expressly acknowledge
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and agree that the Trust is a third party beneficiary of this
Agreement and that the Trust shall have the full right to xxx upon and
enforce this Agreement in accordance with its terms as if it were a
signatory hereto.
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15. Notices. Any notice or other communication required to be
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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 X. Xxxxx, Chief Executive Officer
Phone: (303) __________
Fax: (303) __________
(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
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(c) To the Trust at:
Xxxxxx Institutional Products 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 X. Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
16. Certain Definitions. As used in this Agreement, the terms
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"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
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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.
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18. Miscellaneous. This Agreement may be executed in two or
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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
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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 the Trust.
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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:____________________________________
Name:
Title:
BANK OF IRELAND ASSET MANAGEMENT (U.S.)
LIMITED
By:____________________________________
Name:
Title:
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