Exhibit 4(c)
SUB-INVESTMENT ADVISORY AGREEMENT
AGREEMENT dated September 29, 2006, between BlackRock Advisors, LLC, a
Delaware limited liability company (the "Advisor"), and BlackRock Institutional
Management Corporation, a Delaware corporation (the "Sub-Advisor").
WHEREAS, the Advisor has agreed to furnish investment advisory services to
the Xxxxxxx Xxxxx Retirement Reserves Money Fund (the "Fund"), a series of
Xxxxxxx Xxxxx Retirement Series Trust, a Massachusetts business trust (the
"Trust"), an open-end management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Advisor wishes to retain the Sub-Advisor to provide it with
certain sub-advisory services as described below in connection with Advisor's
advisory activities on behalf of the Fund;
WHEREAS, the advisory agreement between the Advisor and the Trust, dated
September 29, 2006 (such agreement or the most recent successor agreement
between such parties relating to advisory services to the Trust is referred to
herein as the "Advisory Agreement") contemplates that the Advisor may
sub-contract investment advisory services with respect to the Fund to a
sub-advisor pursuant to a sub-advisory agreement agreeable to the Fund and
approved in accordance with the provisions of the 1940 Act; and
WHEREAS, this Agreement has been approved in accordance with the
provisions of the 1940 Act, and the Sub-Advisor is willing to furnish such
services upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein contained and other good and valuable consideration, the receipt of which
is hereby acknowledged, it is agreed by and between the parties hereto as
follows:
1. Appointment. The Advisor hereby appoints the Sub-Advisor to act as
sub-advisor with respect to the Fund and the Sub-Advisor accepts such
appointment and agrees to render the services herein set forth for the
compensation herein provided.
2. Services of the Sub-Advisor. Subject to the succeeding provisions of
this section, the oversight and supervision of the Advisor and the direction and
control of the Trustees, the Sub-Advisor will perform certain of the day-to-day
operations of the Fund, which may include one or more of the following services,
at the request of the Advisor: (a) acting as investment advisor for and managing
the investment and reinvestment of those assets of the Fund as the Advisor may
from time to time request and in connection therewith have complete discretion
in purchasing and selling such securities and other assets for the Fund and in
voting, exercising consents and exercising all other rights appertaining to such
securities and other assets on behalf of the Fund; (b) arranging, subject to the
provisions of paragraph 3 hereof, for the purchase and sale of securities and
other assets of the Fund; (c) providing investment research and credit analysis
concerning the Fund's investments, (d) assisting the Advisor in determining what
portion of the Fund's assets will be invested in cash, cash equivalents and
money market instruments, (e) placing orders for all purchases and sales of such
investments made for the Fund, and (f) maintaining the books and records as are
required to support Fund investment operations. At the request of the Advisor,
the Sub-Advisor will also, subject to the oversight and supervision of the
Advisor and the direction and control of the Trust's Board of Trustees, provide
to the Advisor or the Fund any of the facilities and equipment and perform any
of the services described in Section 3 of the Advisory Agreement. In addition,
the Sub-Advisor will keep the Fund and the Advisor informed of developments
materially affecting the Fund and shall, on its own initiative, furnish to the
Fund from time to time whatever information the Sub-Advisor believes appropriate
for this purpose. The Sub-Advisor will periodically communicate to the Advisor,
at such times as the Advisor may direct, information concerning the purchase and
sale of securities for the Fund, including: (a) the name of the issuer, (b) the
amount of the purchase or sale, (c) the name of the broker or dealer, if any,
through which the purchase or sale is effected, (d) the CUSIP number of the
instrument, if any, and (e) such other information as the Advisor may reasonably
require for purposes of fulfilling its obligations to the Fund under the
Advisory Agreement. The Sub-Advisor will provide the services rendered by it
under this Agreement in accordance with the Fund's investment objectives,
policies and restrictions (as currently in effect and as they may be amended or
supplemented from time to time) as stated in the Fund's Prospectus and Statement
of Additional Information and the resolutions of the Trust's Board of Trustees.
3. Covenants.
(a) In the performance of its duties under this Agreement, the
Sub-Advisor shall at all times conform to, and act in accordance with, any
requirements imposed by: (i) the provisions of the 1940 Act and the Investment
Advisers Act of 1940, as amended (the "Advisers Act") and all applicable Rules
and Regulations of the Securities and Exchange Commission (the "SEC"); (ii) any
other applicable provision of law; (iii) the provisions of the Declaration of
Trust and By-Laws of the Fund, as such documents are amended from time to time;
(iv) the investment objectives and policies of the Fund as set forth in the
Registration Statement on Form N-1A and/or the resolutions of the Board of
Trustees; and (v) any policies and determinations of the Board of the Trustees
of the Trust and
(b) In addition, the Sub-Advisor will:
(i) place orders either directly with the issuer or with any
broker or dealer. Subject to the other provisions of this paragraph, in
placing orders with brokers and dealers, the Sub-Advisor will attempt to
obtain the best price and the most favorable execution of its orders. In
placing orders, the Sub-Advisor will consider the experience and skill of
the firm's securities traders as well as the firm's financial
responsibility and administrative efficiency. Consistent with this
obligation, the Sub-Advisor may select brokers on the basis of the
research, statistical and pricing services they provide to the Fund and
other clients of the Advisor or the Sub-Advisor. Information and research
received from such brokers will be in addition to, and not in lieu of, the
services required to be performed by the Sub-Advisor hereunder. A
commission paid to such brokers may be higher than that which another
qualified broker would have charged for effecting the same transaction,
provided that the Sub-Advisor determines in good faith that such
2
commission is reasonable in terms either of the transaction or the overall
responsibility of the Advisor and the Sub-Advisor to the Fund and their
other clients and that the total commissions paid by the Fund will be
reasonable in relation to the benefits to the Fund over the long-term.
Subject to the foregoing and the provisions of the 1940 Act, the
Securities Exchange Act of 1934, as amended, and other applicable
provisions of law, the Sub-Advisor may select brokers and dealers with
which it or the Fund is affiliated;
(ii) maintain books and records with respect to the Fund's
securities transactions and will render to the Advisor and the Fund's
Board of Trustees such periodic and special reports as they may request;
(iii) maintain a policy and practice of conducting its
investment advisory services hereunder independently of the commercial
banking operations of its affiliates. When the Sub-Advisor makes
investment recommendations for the Fund, its investment advisory personnel
will not inquire or take into consideration whether the issuer of
securities proposed for purchase or sale for the Fund's account are
customers of the commercial department of its affiliates; and
(iv) treat confidentially and as proprietary information of
the Fund all records and other information relative to the Fund, and the
Fund's prior, current or potential shareholders, and will not use such
records and information for any purpose other than performance of its
responsibilities and duties hereunder, except after prior notification to
and approval in writing by the Fund, which approval shall not be
unreasonably withheld and may not be withheld where the Sub-Advisor may be
exposed to civil or criminal contempt proceedings for failure to comply,
when requested to divulge such information by duly constituted
authorities, or when so requested by the Fund.
4. Services Not Exclusive. Nothing in this Agreement shall prevent the
Sub-Advisor or any officer, employee or other affiliate thereof from acting as
investment advisor for any other person, firm or corporation, or from engaging
in any other lawful activity, and shall not in any way limit or restrict the
Sub-Advisor or any of its officers, employees or agents from buying, selling or
trading any securities for its or their own accounts or for the accounts of
others for whom it or they may be acting; provided, however, that the
Sub-Advisor will undertake no activities which, in its judgment, will adversely
affect the performance of its obligations under this Agreement.
5. Books and Records. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Sub-Advisor hereby agrees that all records which it
maintains for the Fund are the property of the Fund and further agrees to
surrender promptly to the Fund any such records upon the Fund's request. The
Sub-Advisor further agrees to preserve for the periods prescribed by Rule 31a-2
under the 1940 Act the records required to be maintained by Rule 31a-1 under the
1940 Act (to the extent such books and records are not maintained by the
Advisor).
6. Expenses. During the term of this Agreement, the Sub-Advisor will bear
all costs and expenses of its employees and any overhead incurred by the
Sub-Advisor in connection with its duties hereunder; provided that the Board of
Trustees of the Trust may approve
3
reimbursement to the Sub-Advisor of the pro-rata portion of the salaries,
bonuses, health insurance, retirement benefits and all similar employment costs
for the time spent on Fund operations (including, without limitation, compliance
matters) (other than the provision of investment advice and administrative
services required to be provided hereunder) of all personnel employed by the
Sub-Advisor who devote substantial time to Fund operations or the operations of
other investment companies advised or sub-advised by the Sub-Advisor.
7. Compensation.
(a) The Advisor agrees to pay to the Sub-Advisor and the Sub-Advisor
agrees to accept as full compensation for all services rendered by the
Sub-Advisor as such, a monthly fee in arrears at an annual rate equal to the
amount set forth in Schedule A hereto. For any period less than a month during
which this Agreement is in effect, the fee shall be prorated according to the
proportion which such period bears to a full month of 28, 29, 30 or 31 days, as
the case may be.
(b) For purposes of this Agreement, the net assets of the Fund shall
be calculated pursuant to the procedures adopted by resolutions of the Trustees
of the Trust for calculating the value of the Fund's assets or delegating such
calculations to third parties.
8. Indemnity.
(a) The Fund may, in the discretion of the Board of Trustees of the
Trust, indemnify the Sub-Advisor, and each of the Sub-Advisor's directors,
officers, employees, agents, associates and controlling persons and the
directors, partners, members, officers, employees and agents thereof (including
any individual who serves at the Sub-Advisor's request as director, officer,
partner, member, trustee or the like of another entity) (each such person being
an "Indemnitee") against any liabilities and expenses, including amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and counsel
fees (all as provided in accordance with applicable state law) reasonably
incurred by such Indemnitee in connection with the defense or disposition of any
action, suit or other proceeding, whether civil or criminal, before any court or
administrative or investigative body in which such Indemnitee may be or may have
been involved as a party or otherwise or with which such Indemnitee may be or
may have been threatened, while acting in any capacity set forth herein or
thereafter by reason of such Indemnitee having acted in any such capacity,
except with respect to any matter as to which such Indemnitee shall have been
adjudicated not to have acted in good faith in the reasonable belief that such
Indemnitee's action was in the best interest of the Fund and furthermore, in the
case of any criminal proceeding, so long as such Indemnitee had no reasonable
cause to believe that the conduct was unlawful; provided, however, that (1) no
Indemnitee shall be indemnified hereunder against any liability to the Fund or
its shareholders or any expense of such Indemnitee arising by reason of (i)
willful misfeasance, (ii) bad faith, (iii) gross negligence or (iv) reckless
disregard of the duties involved in the conduct of such Indemnitee's position
(the conduct referred to in such clauses (i) through (iv) being sometimes
referred to herein as "disabling conduct"), (2) as to any matter disposed of by
settlement or a compromise payment by such Indemnitee, pursuant to a consent
decree or otherwise, no indemnification either for said payment or for any other
expenses shall be provided unless there has been a determination that such
settlement or compromise is in the best interests of the Fund and that such
Indemnitee appears to have acted in
4
good faith in the reasonable belief that such Indemnitee's action was in the
best interest of the Fund and did not involve disabling conduct by such
Indemnitee and (3) with respect to any action, suit or other proceeding
voluntarily prosecuted by any Indemnitee as plaintiff, indemnification shall be
mandatory only if the prosecution of such action, suit or other proceeding by
such Indemnitee was authorized by a majority of the full Board of Trustees of
the Trust.
(b) The Fund shall make advance payments in connection with the
expenses of defending any action with respect to which indemnification might be
sought hereunder if the Fund receives a written affirmation of the Indemnitee's
good faith belief that the standard of conduct necessary for indemnification has
been met and a written undertaking to reimburse the Fund unless it is
subsequently determined that such Indemnitee is entitled to such indemnification
and if the Trustees of the Trust determine that the facts then known to them
would not preclude indemnification. In addition, at least one of the following
conditions must be met: (A) the Indemnitee shall provide a security for such
Indemnitee's undertaking, (B) the Fund shall be insured against losses arising
by reason of any unlawful advance, or (C) a majority of a quorum consisting of
Trustees of the Trust who are neither "interested persons" of the Trust (as
defined in Section 2(a)(19) of the 0000 Xxx) nor parties to the proceeding
("Disinterested Non-Party Trustees") or an independent legal counsel in a
written opinion, shall determine, based on a review of readily available facts
(as opposed to a full trial-type inquiry), that there is reason to believe that
the Indemnitee ultimately will be found entitled to indemnification.
(c) All determinations with respect to the standards for
indemnification hereunder shall be made (1) by a final decision on the merits by
a court or other body before whom the proceeding was brought that such
Indemnitee is not liable by reason of disabling conduct, or (2) in the absence
of such a decision, by (i) a majority vote of a quorum of the Disinterested
Non-Party Trustees of the Trust, or (ii) if such a quorum is not obtainable or
even, if obtainable, if a majority vote of such quorum so directs, independent
legal counsel in a written opinion. All determinations that advance payments in
connection with the expense of defending any proceeding shall be authorized
shall be made in accordance with the immediately preceding clause (2) above.
The rights accruing to any Indemnitee under these provisions shall not
exclude any other right to which such Indemnitee may be lawfully entitled.
9. Limitation on Liability.
(a) The Sub-Advisor will not be liable for any error of judgment or
mistake of law or for any loss suffered by the Advisor or by the Fund in
connection with the performance of this Agreement, except a loss resulting from
a breach of fiduciary duty with respect to the receipt of compensation for
services 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 duties under this Agreement. As used in this Section
9(a), the term "Sub-Advisor" shall include any affiliates of the Sub-Advisor
performing services for the Fund contemplated hereby and partners, directors,
officers and employees of the Sub-Advisor and such affiliates.
5
(b) Notwithstanding anything to the contrary contained in this
Agreement, the parties hereto acknowledge and agree that, as provided in Section
5.1 of the Declaration of Trust, this Agreement is executed by the Trustees
and/or officers of the Trust, not individually but as such Trustees and/or
officers of the Fund, and the obligations hereunder are not binding upon any of
the Trustees or Shareholders individually but bind only the estate of the Fund.
10. Duration and Termination. This Agreement shall become effective as of
the date hereof and, unless sooner terminated with respect to the Fund as
provided herein, shall continue in effect for a period of two years. Thereafter,
if not terminated, this Agreement shall continue in effect with respect to the
Fund for successive periods of 12 months, provided such continuance is
specifically approved at least annually by both (a) the vote of a majority of
the Trust's Board of Trustees or a vote of a majority of the outstanding voting
securities of the Fund at the time outstanding and entitled to vote and (b) by
the vote of a majority of the Trustees, who are not parties to this Agreement or
interested persons (as such term is defined in the 0000 Xxx) of any such party,
cast in person at a meeting called for the purpose of voting on such approval.
Notwithstanding the foregoing, this Agreement may be terminated by the Fund or
the Advisor at any time, without the payment of any penalty, upon giving the
Sub-Advisor 60 days' notice (which notice may be waived by the Sub-Advisor),
provided that such termination by the Fund or the Advisor shall be directed or
approved by the vote of a majority of the Trustees of the Trust in office at the
time or by the vote of the holders of a majority of the outstanding voting
securities of the Fund entitled to vote, or by the Sub-Advisor on 60 days'
written notice (which notice may be waived by the Fund and the Advisor), and
will terminate automatically upon any termination of the Advisory Agreement
between the Fund and the Advisor. This Agreement will also immediately terminate
in the event of its assignment. (As used in this Agreement, the terms "majority
of the outstanding voting securities," "interested person" and "assignment"
shall have the same meanings of such terms in the 1940 Act.)
11. Notices. Any notice under this Agreement shall be in writing to the
other party at such address as the other party may designate from time to time
for the receipt of such notice and shall be deemed to be received on the earlier
of the date actually received or on the fourth day after the postmark if such
notice is mailed first class postage prepaid.
12. Amendment of this Agreement. This Agreement may be amended by the
parties only if such amendment is specifically approved by the vote of the Board
of Trustees of the Trust, including 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 and, where
required by the 1940 Act, by a vote of a majority of the outstanding voting
securities of the Fund.
13. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof 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 on, and shall inure to the
benefit of the parties hereto and their respective successors.
6
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York for contracts to be performed
entirely therein without reference to choice of law principles thereof and in
accordance with the applicable provisions of the 1940 Act. To the extent that
the applicable laws of the State of New York, or any of the provisions, conflict
with the applicable provisions of the 1940 Act, the latter shall control.
15. Counterparts. This Agreement may be executed in counterparts by the
parties hereto, each of which shall constitute an original counterpart, and all
of which, together, shall constitute one Agreement.
7
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers designated below as of the day and
year first above written.
BLACKROCK ADVISORS, LLC
By:
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
BLACKROCK INSTITUTIONAL MANAGEMENT
CORPORATION
By:
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
AGREED AND ACCEPTED
as of the date first set forth above
XXXXXXX XXXXX RETIREMENT SERIES TRUST
By:
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
8
Schedule A
Sub-Investment Advisory Fee
---------------------------
59% of the monthly advisory fee received by the Advisor from the Fund.
