Exhibit A
The language to be added to the current Sub-Advisory Agreement is double
underlined and the language to be deleted is set forth in [brackets]. Headings
that were underlined in the Trust's current Sub-Advisory Agreement remain
underlined in this Exhibit.
SUB-ADVISORY AGREEMENT
AGREEMENT made as of the[ 1st]__ day of [February]_________, [2000,]____,
between LEND LEASE REAL ESTATE INVESTMENTS, INC., a Delaware corporation (the
"Adviser") and LEND LEASE XXXXX REAL ESTATE SECURITIES, LLC, a Delaware limited
liability company (the "Sub-Adviser").
WHEREAS, the Adviser is engaged principally in the business of rendering
investment management services and is registered as an investment adviser under
the Investment Advisers Act of 1940, as amended (the "Advisers Act"); and
WHEREAS, the Sub-Adviser is engaged principally in the business of
rendering investment management services and is registered as an investment
adviser under the Advisers Act; and
WHEREAS, LEND LEASE FUNDS, a Delaware business trust (the "Trust"),
[proposes to engage] is engaged in the business [as] of being an open-end
management investment company and is so registered under the Investment Company
Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue shares of beneficial interest in
separate series, with each such series representing interests in a separate
portfolio of securities and other assets; and
WHEREAS, the Trust currently intends to offer shares in multiple classes
of one series, the Lend Lease U.S. Real Estate Securities Fund, such series
together with all other series subsequently established by the Trust with
respect to which the Sub-Adviser renders management and investment advisory
services pursuant to the terms of this Agreement, being herein collectively
referred to as the "Funds" and individually as a "Fund"; and
WHEREAS, pursuant to the Advisory Agreement, as of [even date
HEREWITH,]February 1, 2000, between the Trust and the Adviser (the "Advisory
Agreement"), the Adviser is required to perform investment advisory services for
the Funds.
NOW, THEREFORE, WITNESSETH: That it is hereby agreed between the
parties hereto as follows:
1. APPOINTMENT OF SUB-ADVISER.
(a) Lend Lease U.S. Real Estate Securities Fund. The Adviser
hereby employs the Sub-Adviser to provide investment advisory services to
the Lend Lease U.S. Real Estate Securities Fund for the period and on the
terms herein set forth. The Sub-Adviser accepts such appointment and
agrees to render the services herein set forth, for the compensation
herein provided.
(b) Additional Funds. In the event that the Trust establishes
one or more series of shares other than the Lend Lease U.S. Real Estate
Securities Fund with respect to which the Adviser desires to retain the
Sub-Adviser to render investment advisory services hereunder, the Adviser
shall so notify the Sub-Adviser in writing, indicating the advisory fee to
be payable with respect to the additional series of shares. If the
Sub-Adviser is willing to render such services on the terms provided for
herein, it shall so notify the Adviser in writing, whereupon such series
shall become a Fund hereunder.
2. DUTIES OF ADVISER AND SUB-ADVISER.
(i) Delivery of Documents. The Adviser has furnished the Sub-Adviser
with true copies of each of the following:
(a) The Trust's Certificate of Trust as filed with the
Secretary of State of the State of Delaware;
(b) The Trust's Master Trust Agreement, and all amendments and
supplements thereto (such Master Trust Agreement, as presently in
effect and as it shall from time to time be amended or supplemented,
is herein called the ("Declaration");
(c) The Trust's By-Laws and amendments and supplements thereto
(such By-Laws, as presently in effect and as it shall from time to
time be amended and supplemented, is herein called the "By-Laws");
(d) Resolutions of the Trust's Board of Trustees authorizing
the appointment of the Adviser and Sub-Adviser and approving the
Advisory Agreement and this Agreement and copies of the minutes of
the initial meeting of shareholders of each Fund;
(e) The Trust's Notification of Registration on Form N-8A
under the 1940 Act as filed with the Securities and Exchange
Commission on November 1, 1999 and all amendments thereto;
(f) The Trust's Registration Statement on Form N-1A under the
Securities Act of 1933 as amended (the "1933 Act") and the 1940 Act
(File Nos. 333-90085 and 811-09679) as filed with the Securities and
Exchange Commission on November 1, 1999, and all amendments thereto
(the "Registration Statement");
(g) The most recent prospectus (such prospectus, as in effect
from time to time and all amendments and supplements thereto are
herein called the ("Prospectus") of each Fund;
(h) All resolutions of the Board of Trustees of the Trust
pertaining to the objectives, investment policies and investment
restrictions of the each Fund; and
(i) Copies of the executed Advisory Agreement between the
Trust and the Adviser relating to each Fund.
The Adviser will furnish the Sub-Adviser from time to time
with copies of all amendments of or supplements to the foregoing
items to the extent such amendments or supplements relate to or
affect the obligations of the Sub-Adviser hereunder with respect to
the Lend Lease U.S. Real Estate Securities Fund or any other series
of the Trust that hereafter becomes a Fund hereunder.
(ii) The Sub-Adviser, at its own expense, shall furnish the
following services to the Trust:
(a) Investment Program. The Sub-Adviser is hereby authorized
and directed and hereby agrees, subject to the stated investment
objective and policies of the Funds as set forth in the Trust's
current Registration Statement and subject to the supervision of the
Adviser and the Board of Trustees of the Trust, to (i) develop and
furnish continuously an investment program and strategy for each
Fund in compliance with that Fund's investment objective and
policies as set forth in the Trust's current Registration Statement,
(ii) provide research and analysis relative to the investment
program and investments of each Fund, (iii) determine (subject to
the overall supervision of the Board of Trustees of the Trust) what
investments shall be purchased, held, sold or exchanged by each Fund
and what portion, if any, of the assets of each Fund shall be held
in cash or cash equivalents, and (iv) make changes on behalf of the
Trust in the investments of each Fund. In accordance with paragraph
2(ii)(b), the Sub-Adviser shall arrange for the placing of all
orders for the purchase and sale of securities and other investments
for each Fund's account and will exercise full discretion and act
for the Trust in the same manner and with the same force and effect
as the Trust might or could do with respect to such purchases, sales
or other transactions, as well as with respect to all other things
necessary or incidental to the furtherance or
conduct of such purchases, sales or transactions. The Sub-Adviser
will make its officers and employees available to meet with the
Adviser's officers and directors on due notice at reasonable times
to review the investments and investment program of each Fund in the
light of current and prospective economic and market conditions.
In the performance of its duties hereunder, the Sub-Adviser is
and shall be an independent contractor and except as expressly
provided for herein or otherwise expressly provided or authorized
shall have no authority to act for or represent any Fund or the
Trust in any way or otherwise be deemed to be an agent of any Fund,
the Trust or of the Adviser. If any occasion should arise in which
the Sub-Adviser gives any advice to its clients concerning the
shares of a Fund, the Sub-Adviser will act solely as investment
counsel for such clients and not in any way on behalf of the Trust
or any Fund.
(b) Portfolio Transactions. In connection with the management
of the investment and reinvestment of each Fund, the Sub-Adviser,
acting by its own officers, directors or employees or by a duly
authorized subcontractor, is authorized to select the broker or
dealers that will execute purchase and sale transactions for the
Trust.
In executing portfolio transactions and selecting brokers or
dealers, if any, the Sub-Adviser will use its best efforts to seek
on behalf of a Fund the best overall terms available. In assessing
the best overall terms available for any transaction, the
Sub-Adviser shall consider all factors it deems relevant, including
the breadth of the market in and the price of the security, the
financial condition and execution capability of the broker or
dealer, and the reasonableness of the commission, if any, with
respect to the specific transaction and on a continuing basis. In
evaluating the best overall terms available, and in selecting the
broker or dealer, if any, to execute a particular transaction, the
Sub-Adviser may also consider the brokerage and research services
(as those terms are defined in Section 28(e) of the Securities
Exchange Act of 1934) provided to the Sub-Adviser with respect to
the Lend Lease U.S. Real Estate Securities Fund and/or other
accounts over which the Sub-Adviser exercises investment discretion.
The Sub-Adviser may pay to a broker or dealer who provides such
brokerage and research services a commission for executing a
portfolio transaction which is in excess of the amount of commission
another broker or dealer would have charged for effecting that
transaction if, but only if, the Sub-Adviser determines in good
faith that such commission was reasonable in relation to the value
of the brokerage and research services provided.
The Sub-Adviser may buy securities for a Fund at the same time
it is selling such securities for another client account and may
sell securities for a Fund at the time it is buying such securities
for another client account. In such cases,
subject to applicable legal and regulatory requirements, and in
compliance with such procedures of the Trust as may be in effect
from time to time, the Sub-Adviser may effectuate cross transactions
between a Fund and such other account if it deems this to be
advantageous. The Sub-Adviser also may cause a Fund to enter into
other types of investment transactions (e.g., a long position on a
particular securities index) at the same time it is causing other
client accounts to take opposite economic positions (e.g., a short
position on the same index).
On occasions when the Sub-Adviser deems the purchase or sale
of a security to be in the best interest of a Fund as well as other
clients, the Sub-Adviser, to the extent permitted by applicable laws
and regulations, and in compliance with such procedures of the Trust
as may be in effect from time to time, may aggregate the securities
to be sold or purchased in order to obtain the best execution and
lower brokerage commissions, if any. 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 Sub-Adviser in the
manner it considers to be the most equitable and consistent with its
fiduciary obligations to the subject Fund and to such clients.
The Sub-Adviser will advise the Funds' custodian or such
depository or agents as may be designated by the custodian and the
Adviser promptly of each purchase and sale of a portfolio security,
specifying the name of the issuer, the description and amount or
number of shares of the security purchased, the market price, the
commission and gross or net price, the trade date and settlement
date and the identity of the effecting broker or dealer. The
Sub-Adviser shall not have possession or custody of any Fund
investments. The Trust shall be responsible for all custodial
agreements and the payment of all custodial charges and fees and,
upon the Sub-Adviser giving proper instructions to the custodian,
the Sub-Adviser shall have no responsibility or liability for the
acts, omissions or other conduct of the custodian.
The Sub-Adviser shall, upon due notice from the Adviser,
provide such periodic and special reports describing any such
research, advice or other services received and the incremental
commissions, net price or other consideration to which they relate.
Notwithstanding the foregoing, the Sub-Adviser agrees that the
Adviser shall have the right by written notice to identify
securities that may not be purchased on behalf of any Fund and/or
brokers and dealers through which portfolio transaction on behalf of
the Funds may not be effected, including, without limitation,
brokers or dealers affiliated with the Adviser. The Sub-Adviser
shall refrain from purchasing such securities for the Fund or
directing any portfolio transaction to any such broker or dealer on
behalf of the Fund, unless and until the written approval of the
Adviser to do so is obtained, but the Sub-
Adviser shall not be liable to the Lend Lease U.S. Real Estate
Securities Fund for so acting. In addition, the Sub-Adviser agrees
that it shall not direct portfolio transactions for the Fund through
any broker or dealer that is an "affiliated person" of the
Sub-Adviser (as that term is defined in the Act or interpreted under
applicable rules and regulations of the Securities and Exchange
Commission) without the prior written approval of the Adviser and in
no event shall the Sub-Adviser direct portfolio transactions on
behalf of the Fund to any broker/dealer in recognition of sales of
shares of any investment company or receipt of research or other
service without prior written approval of the Adviser. The Adviser
agrees that it will provide the Sub-Adviser with a list of brokers
and dealers that are "affiliated persons" of the Funds.
(c) Reports. The Sub-Adviser shall render to the Board of
Trustees of the Trust such periodic and special reports as the Board
of Trustees may request with respect to matters relating to the
duties of the Sub-Adviser set forth herein.
3. SUB-ADVISORY FEE.
For the services to be provided by the Sub-Adviser as provided in
Paragraph 2 hereof, the Adviser shall pay to the Sub-Adviser an annual fee as
set forth on Schedule A to this Agreement.
In the case of commencement or termination of this Agreement with respect
to any Fund during any calendar month, the fee with respect to such Fund for
that month shall be reduced proportionately based upon the number of calendar
days during which it is in effect, and the fee shall be computed during the
average daily net assets of such Fund for the days during which it is in effect.
4. EXPENSES.
During the term of this Agreement, the Sub-Adviser will bear all expenses
incurred by it in the performance of its duties hereunder, other than those
expenses specifically assumed by the Trust hereunder. The Trust shall assume and
shall pay (i) issue and transfer taxes chargeable to the Trust in connection
with securities transactions to which any Fund is a party, and (ii) interest on
borrowed money, if any. In addition to these expenses, the Trust shall pay all
brokers' and underwriting commissions chargeable to the Trust in connection with
the securities transactions to which any Fund is a party. The expenses to be
borne by the Trust shall include, without limitation:
(a) all expenses of organizing the Trust or forming any series
thereof, to the extent now or hereafter permitted under generally accepted
accounting principles applicable to registered investment companies;
(b) all expenses (including information, materials and services
other than services of the Adviser (including any services of the Sub-adviser)
of preparing, printing and
mailing all annual, semiannual and periodic reports, proxy materials and other
communications (including registration statements, prospectuses and amendments
and revisions thereto) furnished to existing shareholders of the Trust and/or
regulatory authorities;
(c) fees involved in registering and maintaining registration of the
Trust and its shares with the Securities and Exchange Commission and state
regulatory authorities;
(d) any other registration, filing or other fees in connection
with requirements of regulatory authorities;
(e) expenses, including the cost of printing of certificates
relating to the issuance of shares of the Trust;
(f) to the extent not paid by the Trust's distributor, the expenses
of maintaining a shareholder account and furnishing, or causing to be furnished,
to each shareholder a statement of his account, including the expense of
mailing;
(g) taxes and fees payable by the Trust to federal, state or
other governmental agencies;
(h) expenses related to the redemption of its shares, including
expenses attributable to any program of periodic redemption;
(i) all issue and transfer taxes, brokers' commissions, margin
costs, interest on borrowings and other costs chargeable to the Trust in
connection with securities transactions to which the Trust is a party, including
any portion of such commissions attributable to research and brokerage services
as defined by Section 28(e) of the Securities Exchange Act of 1934, as amended;
(j) the charges and expenses of the custodian appointed by the
Trust, or any depository utilized by such custodian, for the safekeeping of
its property;
(k) charges and expenses of the Administrator and any shareholder
servicing agents, transfer agents and registrars appointed by the Trust,
including costs of servicing shareholder investment accounts;
(l) charges and expenses of independent accountants retained by the
Trust (including but not limited to charges and expenses relating to tax
compliance and the preparation and review of tax returns and related tax
matters);
(m) fees and expenses for legal services in connection with the
affairs of the Trust, including reasonable fees charged (including internal
charges and allocations) and expenses incurred by the Adviser (or the
Sub-adviser), if any, for performing such legal services for the Trust;
(n) compensation and expenses of Trustees of the Trust who are
not "interested persons" of the Trust (as defined in the 0000 Xxx);
(o) expenses of shareholders' and Trustees' meetings;
(p) membership dues in, and assessments of, the Investment
Company Institute or similar organizations;
(q) insurance premiums on fidelity, errors and omissions and
other coverages;
(r) expenses incurred in connection with any distribution plan
adopted by the Trust in compliance with Rule 12b-1 of the 1940 Act;
(s) such other non-recurring expenses of the Trust as may arise,
including expenses of actions, suits, or proceedings to which the Trust is a
party and the legal obligation which the Trust may have to indemnify its
Trustees, officers or shareholders with respect thereto;
(t) fees and expenses incurred in connection with registering and
qualifying the Trust's shares with federal and state regulatory authorities,
including reasonable fees charged (including internal charges and allocations)
and expenses incurred by the administrator or the Adviser (or the
Sub[-Adviser]ADVISER), if any, for performing such services for the Trust; and
(u) fees and expenses for fund accounting services, including
reasonable fees charged (including internal charges and allocations) and
expenses incurred by the administrator or the Adviser (or the Sub-adviser), if
any, for performing such fund accounting services for the Trust.
5. COMPLIANCE WITH APPLICABLE REGULATIONS.
In performing its duties hereunder, the Sub-Adviser
(i) shall establish compliance procedures (copies of which shall be
provided to the Adviser, and shall be subject to review and approval
by the Adviser) reasonably calculated to ensure compliance at all
times with: all applicable provisions of the 1940 Act and the
Advisers Act, and any rules and regulations adopted thereunder;
Subchapter M of the Internal Revenue Code of 1986, as amended; the
provisions of the Registration Statement; the provisions of the
Declaration and the By-Laws of the Trust, as the same may be amended
from time to time; and any other applicable provisions of state,
federal or foreign law.
(ii) acknowledges that the Trust has adopted a written code of
ethics complying with the requirements of Rule 17j-1 under the Act
and that the Sub-Adviser and certain of its employees, officers and
directors may be subject to
reporting requirements thereunder and, accordingly, agrees that it
shall, on a timely basis, furnish, and shall cause its employees,
officers and directors to furnish, to the Adviser and/or to the
Trust, all reports and information required to be provided under
such code of ethics with respect to such persons.
(iii) agrees that it will maintain for the Trust all and only such
records as required under Rules 31a-1 and 31a-2 under the 1940 Act
in respect to its services hereunder and that such records are the
property of the Trust and further agrees to surrender promptly to
the Trust any such records upon the Trust's request all in
accordance with Rule 31a-3 under the 1940 Act.
6. LIABILITY OF SUB-ADVISER; INDEMNIFICATION.
Neither the Sub-Adviser nor the officers, directors, employees, agents, or
legal representatives (collectively, "Related Persons") of the Sub-Adviser shall
be liable for any error of judgment or mistake of law, or for any loss suffered
by any Fund or its shareholders in connection with the matters to which this
Agreement relates; provided that, except as set forth in the succeeding
paragraph, no provision of this Agreement shall be deemed to protect the
Sub-Adviser or its Related Persons against any liability to which it might
otherwise be subject by reason of any willful misfeasance, bad faith or
negligence or the reckless disregard of the Sub-Adviser's obligations and duties
(each of which is hereby referred to as a "Culpable Act") under this Agreement.
Neither the Sub-Adviser nor its Related Persons shall be liable for any
error of judgment or mistake of law, or for any loss suffered by the Adviser or
its Related Persons in connection with the matters to which this Agreement
relates; provided that this provision shall not be deemed to protect the
Sub-Adviser or its Related Persons against any liability to which it might
otherwise be subject by reason of any Culpable Act by the Sub-Adviser or its
Related Persons.
The Adviser shall indemnify the Sub-Adviser and its Related Persons and
hold them harmless from and against any and all actions, suits or claims whether
groundless or meritorious and from and against any and all losses, damages,
costs, charges, reasonable counsel fees, payments, expenses and liabilities
(collectively, "Damages") arising directly or indirectly out of or in connection
with the performance of services by the Sub-Adviser or its Related Persons
hereunder to the extent such Damages result from any Culpable Act of the Adviser
or any Related Person of the Adviser.
The Sub-Adviser shall indemnify the Adviser and its Related Persons from
and against any Damages arising directly or indirectly out of or in connection
with the performance of services by the Adviser or its Related Persons under
this Agreement or the Advisory Agreement, in each case, to the extent such
Damages result from any Culpable Act of the Sub-Adviser or any of its Related
Persons.
7. REPRESENTATIONS AND WARRANTIES.
(a) Adviser. The Adviser represents and warrants to the Sub-Adviser
that (i) the retention of the Sub-Adviser by the Adviser as contemplated by this
Agreement is authorized by the respective governing documents of the Trust and
the Adviser; (ii) the execution, delivery and performance of each of this
Agreement and the Advisory Agreement does not violate any obligation by which
the Trust or the Adviser or their respective property is bound, whether arising
by contract, operation of law or otherwise; and (iii) each of this Agreement and
the Advisory Agreement has been duly authorized by appropriate action of the
Trust and the Adviser and when executed and delivered by the Adviser will be the
legal, valid and binding obligation of the Trust and the Adviser, enforceable
against the Trust and Adviser in accordance with its terms hereof subject, as to
enforcement, to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general equitable principles (regardless of
whether enforcement is sought in a proceeding in equity or law).
(b) Sub-Adviser. The Sub-Adviser represents and warrants to the
Adviser that (i) the retention of the Sub-Adviser by the Adviser as contemplated
by this Agreement is authorized by the Sub-Adviser's governing documents; (ii)
the execution, delivery and performance of this Agreement does not violate any
obligation by which the Sub-Adviser or its property is bound, whether arising by
contract, operation of law or otherwise; and (iii) this Agreement has been duly
authorized by appropriate action of the Sub-Adviser and when executed and
delivered by the Sub-Adviser will be the legal, valid and binding obligation of
the Sub-Adviser, enforceable against the Sub-Adviser in accordance with its
terms hereof, subject, as to enforcement, to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and to general equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or law).
8. DURATION AND TERMINATION OF THIS AGREEMENT.
(a) Duration. This Agreement shall become effective with respect to
the Lend Lease U.S. Real Estate Securities Fund on the date hereof and, with
respect to any additional Fund, on the date of receipt by the Adviser of notice
from the Sub-Adviser in accordance with Paragraph 1(b) hereof that the
Sub-Adviser is willing to serve as Sub-Adviser with respect to such Fund. Unless
terminated as herein provided, this Agreement shall remain in full force and
effect for [two years] ONE YEAR from the date hereof with respect to the Lend
Lease U.S. Real Estate Securities Fund and, with respect to each additional
Fund, for two years from the date on which such Fund becomes a Fund hereunder.
Subsequent to such initial periods of effectiveness, this Agreement shall
continue in full force and effect for periods of one year thereafter with
respect to each Fund so long as such continuance with respect to any such Fund
is approved at least annually (a) by either the Trustees of the Trust or by vote
of a majority of the outstanding voting securities (as defined in the 0000 Xxx)
of such Fund, and (b) in either event, by the vote of a majority of the Trustees
of the Trust who are not parties to this Agreement or "interested persons" (as
defined in the 0000 Xxx) of any such party, cast in person at a meeting called
for the purpose of voting on such approval.
(b) Amendment. This Agreement may be amended by agreement of the
parties, provided that the amendment shall be approved both by the vote of a
majority of the Trustees of the Trust, including a majority of the Trustees who
are not parties to this Agreement or interested persons of any such party to
this Agreement cast in person at a meeting called for that purpose, and by the
holders of a majority of the outstanding voting securities of the Trust.
(c) Termination. This Agreement may be terminated with respect to
any Fund at any time, without payment of any penalty, (i) by vote of the
Trustees of the Trust or by vote of a majority of the outstanding voting
securities (as defined in the 0000 Xxx) of that Fund, (ii) by the Adviser, or
(iii) by the Sub-Adviser, in each case on sixty (60) days' prior written notice
to the other party. Upon the effective date of termination of this Agreement,
the Sub-Adviser shall deliver all books and records of the Trust or any Fund
held by it (i) to such entity as the Trust may designate as a successor
sub-adviser, or (ii) to the Adviser.
(d) Automatic Termination. This Agreement shall automatically and
immediately terminate in the event of its assignment (as defined in the 1940
Act).
(e) Approval, Amendment or Termination by Individual Fund. Any
approval, amendment or termination of this Agreement by the holders of a
majority of the outstanding voting securities (as defined in the 0000 Xxx) of
any Fund shall be effective to continue, amend or terminate this Agreement with
respect to any such Fund notwithstanding (i) that such action has not been
approved by the holders of a majority of the outstanding voting securities of
any other Fund affected thereby, and (ii) that such action has not been approved
by the vote of a majority of the outstanding voting securities of the Trust,
unless such action shall be required by any applicable law or otherwise.
9. SERVICES NOT EXCLUSIVE.
The services of the Sub-Adviser to the Adviser in connection with the
Funds hereunder are not to be deemed exclusive, and the Sub-Adviser shall be
free to render similar services to others so long as its services hereunder are
not impaired thereby. It is understood that the persons employed by the
Sub-Adviser to assist in the performance of its duties hereunder will not devote
their full time to such services and nothing hereunder contained shall be deemed
to limit or restrict the right of the Sub-Adviser to engage in or devote time
and attention to other businesses or to render services of whatever kind or
nature.
10. INTERIM CONTRACT PROVISIONS.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT:
(a) Prior to this Agreement being approved by a vote of a majority
of the Fund's outstanding voting securities in accordance with the 1940 Act: (i)
in no event shall compensation paid to the Sub-Adviser hereunder exceed the
amount permitted by Rule 15a-4 under the 1940 Act; (ii) all fees payable to the
Sub-Adviser hereunder shall be held in
an interest-bearing escrow account with the Fund's custodian or a bank (the
"Escrow Account"); and (iii) this Agreement may be terminated at any time
without the payment of any penalty, by vote of the Trustees of the Trust or by
a vote of a majority of the outstanding voting securities of the Fund on 10
days' prior written notice to the Sub-Adviser. Funds held in the Escrow Account,
including interest earned, shall be paid to the Sub-Adviser promptly after
approval of this Agreement by the vote of a majority of the Fund's outstanding
voting securities in accordance with the 1940 Act, provided that such approval
is obtained no later than 150 days after the date of this Agreement.
(b) if this Agreement is not approved by a vote of a majority of the
Fund's outstanding voting securities within the time period stated above in (a),
(i) this Agreement shall immediately terminate; and (ii) the Sub-Adviser shall
receive from the Escrow Account the lesser of: (a) the sum of the amount of any
costs incurred by the Sub-Adviser in performing its duties under this Agreement
prior to such termination plus any interest earned on that amount, and (b) the
sum of the amount deposited in the Escrow Account plus any interest earned on
that amount.
11. MISCELLANEOUS.
(a) Notices. All notices or other communications given under this
Agreement shall be made by guaranteed overnight delivery, telecopy or certified
mail; notice is effective when received. Notice shall be given to the parties at
the following addresses:
Adviser: Lend Lease Real Estate Investments, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000-0000
Attention: Contract Compliance Officer
Sub-Adviser: Lend Lease Xxxxx Real Estate Securities, LLC
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: President
(b) Severability. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the remainder
shall not be thereby affected.
(c) Applicable Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware.
(d) Counterparties. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(e) Entire Agreement. This Agreement states the entire agreement of
the parties hereto, and is intended to be the complete and exclusive statement
of the terms hereof. It may not be added to or changed orally, and may not be
modified or rescinded except by a writing signed by the parties hereto and in
accordance with the Investment Company Act of 1940, as amended, when applicable.
IN WITNESS WHEREOF, the Adviser and the Sub-Adviser have caused this
Agreement to be executed as of the date first set forth above.
LEND LEASE REAL ESTATE
INVESTMENTS, INC.
By:
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NAME:
TITLE:
LEND LEASE XXXXX REAL ESTATE
SECURITIES, LLC
By:
---------------------------------------
NAME:
TITLE:
Acknowledged and agreed to as of the date first set forth above with
respect to the Trust's obligations under Paragraph 10 of this Agreement.
LEND LEASE FUNDS
By:
-------------------------------------
NAME:
TITLE:
SCHEDULE A
Lend Lease U.S. Real Estate Securities Fund
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The Adviser shall pay to the Sub-Adviser an annual gross investment
sub-advisory fee equal to .40% of the average daily net assets of the Lend Lease
U.S. Real Estate Securities Fund. Such fee shall be accrued daily and paid as
soon as practical after the last day of each calendar month.
The Sub-Adviser may voluntarily waive all or a portion of the sub-advisory
fee payable from time to time hereunder. The Adviser agrees that, during any
period in which the Sub-Adviser has voluntarily waived all or a portion of the
sub-advisory fee hereunder, if requested by the Sub-Adviser, the Adviser will
waive an equal amount (or such lesser amount as the Sub-Adviser may request) of
the advisory fee payable by the Trust to the Adviser with respect to the Fund
under the Advisory Agreement.
The Sub-Adviser agrees that, during any period in which the Adviser has
waived all or a portion of the advisory fee payable by the Trust to the Adviser
under the Advisory Agreement with respect to the Fund, if requested by the
Adviser, the Sub-Adviser will waive a pro rata share (or such lesser share as
the Adviser may request) of the sub-advisory fee payable hereunder with respect
to the Fund, such that the amount waived by the Sub-Adviser shall bear the same
ratio to the total amount of the sub-advisory fees payable hereunder with
respect to the Fund as the amount waived by the Adviser bears to all fees
payable to the Adviser under the Advisory Agreement with respect to the Fund.
The Adviser agrees that, in addition to any amounts otherwise payable to the
Sub-Adviser with respect to the Fund hereunder, the Adviser shall pay the
Sub-Adviser all amounts previously waived by the Sub-Adviser to the extent that
such amounts are subsequently paid by the Trust to the Adviser under the
Advisory Agreement, it being further agreed that, with respect to any such
amounts subsequently paid by the Trust to the Adviser, the amount to be paid by
the Adviser to the Sub-Adviser shall bear the same ratio to the total amount
paid by the Trust as the total amount previously waived by the Sub-Adviser
during the applicable period bears to the total amount of the fees previously
waived by the Adviser under the Advisory Agreement with respect to the Fund
during the applicable period.
The Sub-Adviser agrees that, during any period in which the Adviser has
agreed to pay or reimburse the Trust for expenses of the Fund, if requested by
the Adviser, the Sub-Adviser shall pay or reimburse the Trust for up to 50% of
all such expenses of the Fund (or such lesser amount as the Adviser may
request). The Adviser agrees that, in addition to any amounts otherwise payable
to the Sub-Adviser with respect to the Fund hereunder, the Adviser shall pay the
Sub-Adviser all amounts previously paid or reimbursed by the Sub-Adviser to the
extent that such amounts are subsequently paid by the Trust to the Adviser under
the Advisory Agreement.
