EXHIBIT 5
THE NON-U.S. FIXED INCOME PORTFOLIO
INVESTMENT ADVISORY AGREEMENT
Agreement, made this 24th day of September, 1994, between The Non-U.S.
Fixed Income Portfolio, a trust organized under the law of the State of New York
(the "Portfolio") and Xxxxxx Guaranty Trust Company of New York, a New York
trust company authorized to conduct a general banking business (the "Advisor"),
WHEREAS, the Portfolio is an open-end diversified management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Portfolio desires to retain the Advisor to render investment
advisory services to the Portfolio, and the Advisor is willing to render such
services;
NOW, THEREFORE, this Agreement
W I T N E S S E T H:
that in consideration of the premises and mutual promises hereinafter set forth,
the parties hereto agree as follows:
1. The Portfolio hereby appoints the Advisor to act as investment adviser
to the Portfolio for the period and on the terms set forth in this Agreement.
The Advisor accepts such appointment and agrees to render the services herein
set forth, for the compensation herein provided.
2. Subject to the general supervision of the Trustees of the Portfolio,
the Advisor shall manage the investment operations of the Portfolio and the
composition of the Portfolio's holdings of securities and investments, including
cash, the purchase, retention and disposition thereof and agreements relating
thereto, in accordance with the Portfolio's investment objectives and policies
as stated in the Registration Statement (as defined in paragraph 3(d) of this
Agreement) and subject to the following understandings:
(a) the Advisor shall furnish a continuous investment program for the
Portfolio and determine from time to time what investments or securities
will be purchased, retained, sold or lent by the Portfolio, and what
portion of the assets will be invested or held uninvested as cash;
(b) the Advisor shall use the same skill and care in the management
of the Portfolio's investments as it uses in the administration of other
accounts for which it has investment responsibility as agent;
(c) the Advisor, in the performance of its duties and obligations
under this Agreement, shall act in conformity with the Declaration of
Trust, By-Laws and Registration Statement of the Portfolio and with the
instructions and directions of the Trustees of the Portfolio and will
conform to and comply with the requirements of the 1940 Act and all other
applicable federal and state laws and regulations;
(d) the Advisor shall determine the securities to be purchased, sold
or lent by the Portfolio and as agent for the Portfolio will effect
portfolio transactions pursuant to its determinations either directly with
the issuer or with any broker and/or dealer in such securities; in placing
orders with brokers and/or dealers the Advisor intends to seek best price
and execution for purchases and sales; the Advisor shall also determine
whether or not the Portfolio shall enter into repurchase or reverse
repurchase agreements;
On occasions when the Advisor deems the purchase or sale of a
security to be in the best interest of the Portfolio as well as other
customers of the Advisor, the Advisor may, to the extent permitted by
applicable laws and regulations, but shall not be obligated to, aggregate
the securities to be so sold or purchased in order to obtain best
execution, including lower brokerage commissions, if applicable. In such
event, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Advisor in the
manner it considers to be the most equitable and consistent with its
fiduciary obligations to the Portfolio;
(e) the Advisor shall maintain books and records with respect to the
Portfolio's securities transactions and shall render to the Portfolio's
Trustees such periodic and special reports as the Trustees may reasonably
request; and
(f) the investment management services of the Advisor to the
Portfolio under this Agreement are not to be deemed exclusive, and the
Advisor shall be free to render similar services to others.
3. The Portfolio has delivered copies of each of the following documents
to the Advisor and will promptly notify and deliver to it all future amendments
and supplements, if any:
(a) Declaration of Trust of the Portfolio (such Declaration of Trust,
as presently in effect and as amended from time to time, is herein called
the "Declaration of Trust");
(b) By-Laws of the Portfolio (such By-Laws, as
presently in effect and as amended from time to time, are
herein called the "By-Laws");
(c) Certified resolutions of the Trustees of the Portfolio
authorizing the appointment of the Advisor and approving the form
of this Agreement;
(d) The Portfolio's Notification of Registration on Form N-8A and
Registration Statement on Form N-1A (No. 811-8790) each under the 1940 Act
(the "Registration Statement") as filed with the Securities and Exchange
Commission (the "Commission") on September 28, 1994, all amendments
thereto.
4. The Advisor shall keep the Portfolio's books and records required to be
maintained by it pursuant to paragraph 2(e). The Advisor agrees that all records
which it maintains for the Portfolio are the property of the Portfolio and it
will promptly surrender any of such records to the Portfolio upon the
Portfolio's request. The Advisor further agrees to preserve for the periods
prescribed by Rule 31a-2 of the Commission under the 1940 Act any such records
as are required to be maintained by the Advisor with respect to the Portfolio by
Rule 31a-1 of the Commission under the 1940 Act.
5. During the term of this Agreement the Advisor will pay all expenses
incurred by it in connection with its activities under this Agreement, other
than the cost of securities and investments purchased for the Portfolio
(including taxes and brokerage commissions, if any).
6. For the services provided and the expenses borne pursuant to this
Agreement, the Portfolio will pay to the Advisor as full compensation therefor a
fee at an annual rate equal to .35% of the Portfolio's average daily net assets.
This fee will be computed daily and payable as agreed by the Portfolio and the
Advisor, but no more frequently than monthly.
7. The Advisor shall not be liable for any error of judgment or mistake of
law or for any loss suffered by the Portfolio in connection with the matters to
which this Agreement relates, except a loss resulting from a breach of fiduciary
duty with respect to the receipt of compensation for services (in which case any
award of damages shall be limited to the period and the amount set forth in
Section 36(b)(3) of the 0000 Xxx) or a loss resulting from willful misfeasance,
bad faith or gross negligence on its part in the performance of its duties or
from reckless disregard by it of its obligations and duties under this
Agreement.
8. This Agreement shall continue in effect for a period of more than two
years from the date hereof only so long as such continuance is specifically
approved at least annually in conformity with the requirements of the 1940 Act;
provided, however, that this Agreement may be terminated by the Portfolio at any
time, without the payment of any penalty, by vote of a majority of all the
Trustees of the Portfolio or by vote of a majority of the outstanding voting
securities of the Portfolio on 60 days' written notice to the Advisor, or by the
Advisor at any time, without the payment of any penalty, on 90 days' written
notice to the Portfolio. This Agreement will automatically and immediately
terminate in the event of its assignment (as defined in the 1940 Act).
9. The Advisor shall for all purposes herein be deemed to be an
independent contractor and shall, unless otherwise expressly provided herein or
authorized by the Trustees of the Portfolio from time to time, have no authority
to act for or represent the Portfolio in any way or otherwise be deemed an agent
of the Portfolio.
10. This Agreement may be amended by mutual consent, but the consent of
the Portfolio must be approved (a) by vote of a majority of those Trustees of
the Portfolio 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
amendment, and (b) by vote of a majority of the outstanding voting securities of
the Portfolio.
11. Notices of any kind to be given to the Advisor by the Portfolio shall
be in writing and shall be duly given if mailed or delivered to the Advisor at 0
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Managing Director, Funds
Management Division, or at such other address or to such other individual as
shall be specified by the Advisor to the Portfolio. Notices of any kind to be
given to the Portfolio by the Advisor shall be in writing and shall be duly
given if mailed or delivered to the Portfolio c/o Signature Financial Group
(Cayman) Limited at P.O. Box 2494, Elizabethan Square, Xxxxxx Town, Grand Cayman
BWI or to such other individual as shall be specified by the Portfolio to the
Advisor.
12. The Trustees have authorized the execution of this Agreement in their
capacity as Trustees and not individually and the Advisor agrees that neither
the shareholders nor the Trustees nor any officer, employee, representative or
agent of the Portfolio shall be personally liable upon, or shall resort be had
to their private property for the satisfaction of, obligations given, executed
or delivered on behalf of or by the Portfolio, that the shareholders, trustees,
officers, employees, representatives and agents of the Portfolio shall not be
personally liable hereunder, and that it shall look solely to the property of
the Portfolio for the satisfaction of any claim hereunder.
13. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
14. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the 24th day of September,
1994.
THE NON-U.S. FIXED INCOME PORTFOLIO
By: /S/XXXXXX X. XXXX
Xxxxxx X. Xxxx
Assistant Secretary
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /S/XXXXXXXX X. XXXXX
Xxxxxxxx X. Xxxxx
Vice President
