INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 23rd day of August, 2002, by and between Westlakes
Institutional Portfolios, a Delaware Business Trust (the "Trust"), and Xxxxxx
Investment Partners, Inc., a Pennsylvania Corporation (the "Investment Manager"
or "Xxxxxx").
WHEREAS, the Trust is a diversified, open-end management investment
company under the Investment Company Act of 1940, as amended (the "Investment
Company Act").
WHEREAS, the Trust has retained Xxxxxx to provide administration of the
Trust's operations, subject to the control of the Board of Trustees;
WHEREAS, the Trust desires to retain the Investment Manager to render
investment management services with respect to the portfolios set forth in
Schedule A attached hereto and such other portfolios as the Trust and the
Investment Manager may agree upon (the "Portfolios"), and the Investment Manager
is willing to render such services:
NOW, THEREFORE, in consideration of mutual covenants herein contained,
the parties hereto agree as follows:
1. DUTIES OF INVESTMENT MANAGER. The Trust employs the
Investment Manager to manage the investment and reinvestment
of the assets of the Trust, and to continuously review,
supervise and (where appropriate) administer the investment
program of the Trust, to determine in its discretion (where
appropriate) the investments to be purchased or sold, to
provide the Trust with records concerning the Investment
Manager's activities which the Trust is required to maintain,
and to render regular reports to the Trust's officers and
Trustees concerning the Investment Manager's discharge of the
foregoing responsibilities. The retention of a sub-adviser by
the Investment Manager shall not relieve the Investment
Manager of its responsibilities under this Agreement.
The Investment Manager 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 of
the Trust as set forth in its Prospectus and Statement of
Additional Information, as amended from time to time, and
applicable laws and regulations.
The Investment Manager 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
(including any sub-advisers) required by it to perform the
services on the terms and for the compensation provided
herein. The Investment Manager will not, however, pay for the
cost of securities, commodities, and other investments
(including brokerage commissions and other transaction
charges, if any) purchased or sold for the Trust.
2. PORTFOLIO TRANSACTIONS. The Investment Manager is authorized
to select the brokers or dealers that will execute the
purchases and sales of the Trust's investments and 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 Investment
Manager will promptly communicate to the officers and the
Trustees of the Trust such information relating to the Trust's
investment transactions as they may reasonably request.
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It is understood that the Investment Manager 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 INVESTMENT MANAGER. For the services
to be rendered by the Investment Manager as provided in
Sections 1 and 2 of this Agreement, the Trust shall pay to the
Investment Manager compensation at the rate specified in
Schedule B which is 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
Schedule B, 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 Investment Manager 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 the Trust for any
fiscal year (including fees and other amounts payable to the
Investment Manager, 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
Investment Manager shall bear such excess cost. However, the
Investment Manager 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 Investment Manager pursuant to this
Section 5 shall be settled on a monthly basis (subject to
fiscal year end reconciliation) by a reduction in the fee
payable to the Investment Manager 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 Investment Manager 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 INVESTMENT MANAGER. The services of the Investment
Manager to the Trust are not to be deemed exclusive, and the
Investment Manager shall be free to render similar services to
others so long as its services to the Trust are not impaired
thereby. The Investment Manager shall be deemed to be an
independent contractor and shall, unless otherwise expressly
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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 Trust Act which are
prepared or maintained by the Investment Manager 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 INVESTMENT MANAGER. The duties
of the Investment Manager shall be confined to those expressly
set forth herein, and no implied duties are assumed by or may
be asserted against the Investment Manager hereunder. The
Investment Manager 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 "Investment Manager" shall
include directors, officers, employees and other corporate
agents of the Investment Manager as well as the corporation
itself).
10. PERMISSIBLE INTERESTS. Trustees, agents, and shareholders
of the Trust are or may be interested in the Investment
Manager (or any successor thereof) as directors, partners,
officers, or Members, or otherwise; directors, partners,
officers, agents, and shareholders of the Investment Manager
are or may be interested in the Trust as Trustees,
shareholders or otherwise; and the Investment Manager (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
Investment Manager if approved by the Board of Trustees,
subject to the rules and regulations of the Securities and
Exchange Commission.
11. 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 Units of the Trust;
provided, however, that if the shareholders of the Trust fail
to approve the Agreement as provided herein, the Investment
Manager may continue to serve hereunder in the manner and to
the extent permitted by the Investment Company Act 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 and the rules and regulations
thereunder.
This Agreement may be terminated 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 Trust on not less than 30 days nor
more than 60 days written notice to the Investment Manager, or
by the Investment Manager 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
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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 12, 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 and the rules
and regulations thereunder; subject to such exemptions as may
be granted by the Securities and Exchange Commission under
said Act.
12. 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, 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000,
Attention: President, and if to the Investment Manager at 0000
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000, Attention:
President.
13. 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 be
affected thereby.
14. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the Commonwealth of Pennsylvania and the
applicable provisions of the Investment Company Act. To the
extent that the applicable laws of the Commonwealth of
Pennsylvania, or any of the provisions herein, conflict with
the applicable provisions of the Investment Company Act, the
latter shall control.
A copy of the Certificate 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.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the day and year first written above.
WESTLAKES INSTITUTIONAL XXXXXX INVESTMENT PARTNERS, INC.
PORTFOLIOS
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx, Xx.
------------------------------ -------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxx, Xx.
Title: EVP & COO Title: Treasurer & CFO
Attest: /s/ Xxxxx X. Xxxxx Attest: /s/ Xxxx X. Xxxxxxxxxxxx
--------------------------- --------------------------------
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SCHEDULE A DATED AUGUST 23, 2002
TO THE
INVESTMENT MANAGEMENT AGREEMENT
DATED AUGUST 23, 2002
BETWEEN
WESTLAKES INSTITUTIONAL PORTFOLIOS
AND
XXXXXX INVESTMENT PARTNERS, INC.
PORTFOLIOS
Core Fixed Income Portfolio
High Quality Fixed Income Portfolio
BBB Fixed Income Portfolio
High Yield Fixed Income Portfolio
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SCHEDULE B DATED AUGUST 23, 2002
TO THE
INVESTMENT MANAGEMENT AGREEMENT
DATED AUGUST 23, 2002
BETWEEN
WESTLAKES INSTITUTIONAL PORTFOLIOS
AND
XXXXXX INVESTMENT PARTNERS, INC.
Pursuant to Section 3, the Trust shall pay the Investment Manager compensation
at an annual rate as follows:
PORTFOLIO FEE (IN BASIS POINTS)
Core Fixed Income Portfolio 0.49% of the average daily net assets
High Quality Fixed Income Portfolio 0.25% of the average daily net assets
BBB Fixed Income Portfolio 0.25% of the average daily net assets
High Yield Fixed Income Portfolio 0.30% of the average daily net assets
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