Exhibit 4(c)
SUB-ADVISORY AGREEMENT
AGREEMENT made as of February __, 2004, by and between XXXXXXX XXXXX REAL
INVESTMENT FUND, a Delaware statutory trust (hereinafter referred to as the
"Fund"), and XXXXXXX XXXXX INVESTMENT MANAGERS LLC, a Delaware limited liability
company (hereinafter referred to as "MLIM LLC").
W I T N E S S E T H:
WHEREAS, the Fund is a Delaware statutory trust engaged in business as an
open-end management investment company registered under the Investment Company
Act of 1940, as amended (hereinafter referred to as the "Investment Company
Act"); and
WHEREAS, MLIM LLC is engaged in rendering investment advisory services and
is registered as an investment adviser under the Investment Advisers Act of
1940, as amended, and as a commodity trading advisor and a commodity pool
operator with the Commodity Futures Trading Commission; and
WHEREAS, the Fund has entered into an investment management agreement (the
"Management Agreement"), dated February __, 2004, with Xxxxxxx Xxxxx Investment
Managers, L.P. (hereinafter referred to as "MLIM") pursuant to which MLIM will
provide investment advisory and management services to the Fund; and
WHEREAS, MLIM LLC is willing to provide investment advisory services to the
Fund with respect to the assets of the Fund on the terms and conditions
hereinafter set forth;
NOW THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Fund and MLIM LLC hereby agree as follows:
ARTICLE I
DUTIES OF MLIM LLC
The Fund hereby employs MLIM LLC to act as an investment adviser for such
assets of the Fund as the Fund may from time to time determine and to furnish,
or arrange for affiliates to furnish, certain investment advisory services with
respect to such portion of the Fund's assets, as described below, subject to the
policies of, review by and overall control of the Trustees of the Fund, for the
period and on the terms and conditions set forth in this Agreement. MLIM LLC
hereby accepts such employment and agrees during such period, at its own
expense, to render, or arrange for the rendering of, such services and to assume
the obligations herein set forth for the compensation, to be paid by MLIM,
provided for herein. MLIM LLC and its affiliates shall for all purposes herein
be deemed to be independent contractors and shall, unless otherwise expressly
provided or authorized, have no authority to act for or represent the Fund in
any way or otherwise be deemed agents of the Fund.
MLIM LLC shall provide (or arrange for affiliates to provide) the Fund with
such investment research, advice and supervision as the latter may from time to
time consider
necessary for the proper management of the portion of the assets of the Fund
from time to time managed by MLIM LLC. All advice and recommendations provided
by MLIM LLC shall be subject to the restrictions of the Declaration of Trust and
By-Laws of the Fund, as amended from time to time, the provisions of the
Investment Company Act and the statements relating to the Fund's investment
objective, investment policies and investment restrictions as the same are set
forth in the Fund's current Registration Statement on Form N-1A.
ARTICLE II
ALLOCATION OF CHARGES AND EXPENSES
MLIM LLC assumes and shall pay for maintaining the staff and personnel
necessary to perform its obligations under this Agreement and shall pay all
compensation of officers of the Fund and all Trustees of the Fund who are
affiliated persons of MLIM LLC to the extent not otherwise paid by MLIM.
ARTICLE III
COMPENSATION OF MLIM LLC
For the services rendered, the facilities furnished and expenses assumed by
MLIM LLC, the Fund shall use its reasonable best efforts to cause MLIM to pay to
MLIM LLC at the end of each calendar month a fee of at least $1.00 or another
amount to be determined from time to time by MLIM and MLIM LLC, but in no event
in excess of the amount that MLIM actually receives for providing services to
the Fund pursuant to the Management Agreement.
ARTICLE IV
LIMITATION OF LIABILITY OF MLIM LLC
MLIM LLC 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 the
performance of services rendered hereunder 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. As used in this Article IV, the term "MLIM LLC" shall include any
affiliates of MLIM LLC performing services for the Fund contemplated hereby and
partners, members, directors, officers and employees of MLIM LLC and such
affiliates.
ARTICLE V
ACTIVITIES OF MLIM LLC
The services of MLIM LLC to the Fund are not to be deemed to be exclusive,
and MLIM LLC and any person controlled by or under common control with MLIM LLC
(for purposes of this Article V referred to as "affiliates") is free to render
services to others. It is understood that Trustees, officers, employees and
shareholders of the Fund are or may become interested in MLIM LLC and its
affiliates, as directors, members, officers, partners, employees
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and shareholders, and that MLIM LLC and its affiliates are or may become
similarly interested in the Fund.
ARTICLE VI
DURATION AND TERMINATION OF THIS AGREEMENT
This Agreement shall become effective as of the date first above written,
and shall remain in force for two years after the effective date of this
Agreement and thereafter, but only so long as such continuance is specifically
approved at least annually by (i) the Trustees of the Fund, or by the vote of a
majority of the outstanding voting securities of the Fund, and (ii) a majority
of those Trustees 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.
This Agreement may be terminated at any time, without the payment of any
penalty, by the Trustees or by vote of a majority of the outstanding voting
securities of the Fund, or by MLIM LLC, on sixty days' written notice to the
other party. This Agreement shall automatically terminate in the event of its
assignment.
ARTICLE VII
AMENDMENTS OF THIS AGREEMENT
This Agreement may be amended by the parties only if such amendment is
approved in compliance with the requirements of the Investment Company Act and
the rules and regulations thereunder.
ARTICLE VIII
DEFINITIONS OF CERTAIN TERMS
The terms "vote of a majority of the outstanding voting securities",
"assignment", "affiliated person" and "interested person," when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act and the rules and regulations thereunder, subject, however, to such
exemptions as may be granted by the Securities and Exchange Commission under
said Act.
ARTICLE IX
GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State
of New York and the applicable provisions of the Investment Company Act. To the
extent that the applicable laws of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
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ARTICLE X
LIMITATION OF OBLIGATIONS OF THE FUND
The obligations of the Fund shall be limited to the assets of the Fund,
shall be separate from the obligations of any other series of the Fund, and any
one series of the Fund shall not be liable for the obligations of any other
series of the Fund.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written. This Agreement may be executed by
the parties hereto in any number of counterparts, all of which together shall
constitute one and the same instrument.
XXXXXXX XXXXX REAL INVESTMENT FUND
By: _____________________________________
Name:
Title:
XXXXXXX XXXXX INVESTMENT
MANAGERS LLC
By: ________,
MANAGING MEMBER
By: ______________________________________
Name:
Title:
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