Exhibit 5(ff)
SUB-ADVISORY AGREEMENT
AGREEMENT made this 29/th/ day of December, 2006 by and between The Bank of
New York, a New York bank (the "Adviser"), and Xxxxxx Securities Management,
Inc., a corporation organized under the laws of the Commonwealth of
Pennsylvania (the "Sub-Adviser").
1. Duties of Sub-Adviser. The Adviser hereby appoints the Sub-Adviser to act
as investment adviser to BNY Xxxxxxxx Global Real Estate Securities Fund (the
"Series"), a series of BNY Xxxxxxxx Funds, Inc., a Maryland corporation (the
"Corporation"), for the period and on such terms as are set forth in this
Agreement. The Adviser employs the Sub-Adviser to manage the investment and
reinvestment of the assets of the Series, to continuously review, supervise and
administer the investment program of the Series, to determine in its discretion
the securities to be purchased or sold and the portion of the Series' assets to
be held uninvested, to provide the Adviser and the Corporation with records
concerning the Sub-Adviser's activities which the Corporation is required to
maintain, and to render regular reports to the Adviser, the Corporation's
officers and Board of Directors concerning the Sub-Adviser's discharge of the
foregoing responsibilities. The Sub-Adviser shall discharge the foregoing
responsibilities subject to the control of the Adviser and the officers and the
Board of Directors of the Corporation, and in compliance with the objectives,
policies and limitations set forth in the Corporation's Registration Statement
(Nos. 811-6654; 33-47703), including the Series' prospectus and statement of
additional information, applicable laws and regulations. In carrying out its
responsibilities hereunder, the Sub-Adviser will consult with the Adviser on a
continuous basis regarding the management of the Series. The Sub-Adviser accepts
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such employment and agrees to render the services and to provide, at its own
expense, the office space, furnishings and equipment and the personnel required
by it to perform the services on the terms and for the compensation provided
therein.
2. Portfolio Transactions. The Sub-Adviser is authorized to select the
brokers or dealers that will execute the purchases and sales of securities for
the Series and is directed to use its best efforts to obtain the best available
price and most favorable execution, except as prescribed herein. It is also
understood that it is desirable for the Series that the Sub-Adviser have access
to supplemental investment and market research and security and economic
analyses provided by brokers who may execute brokerage transactions at a higher
cost to the Series than may result when allocating brokerage to other brokers
on the basis of seeking the most favorable price and efficient execution.
Therefore, the Sub-Adviser is authorized to place orders for the purchase and
sale of securities for the Series with such brokers, subject to review by the
Directors of the Corporation from time to time with respect to the extent and
continuation of this practice. It is understood that the services provided by
such brokers may be useful to the Sub-Adviser in connection with its services
to other clients. The Sub-Adviser may, on occasions when it deems the purchase
or sale of a security to be in the best interests of the Series as well as its
other customers aggregate, to the extent permitted by applicable laws and
regulations, the securities to be sold or purchased in order to obtain the best
net price and the most favorable execution. 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. The execution
of such transactions shall not be deemed to represent an unlawful act or breach
of any duty created by this Agreement or otherwise.
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The Sub-Adviser will promptly communicate to the Adviser and the officers and
Directors of the Corporation such information relating to Series transactions
as they may reasonably request.
3. Compensation of the Sub-Adviser. For the services to be rendered by the
Sub-Adviser as provided in Section 1 of this Agreement, the Adviser shall pay
to the Sub-Adviser at the end of each month an advisory fee accrued daily and
payable monthly based on an annual percentage rate of 0.85% of the Series'
average daily net assets. Neither the Corporation nor the Series shall be
responsible for any portion of the compensation payable to the Sub-Adviser
hereunder.
In the event of termination of this Agreement, the fee provided in this
Section shall be computed on the basis of the period ending on the last
business day on which this Agreement is in effect, subject to a pro rata
adjustment based on the number of days elapsed in the month as a percentage of
the total number of days in such month.
4. Reports. The Adviser agrees to furnish to the Sub-Adviser current
prospectuses, proxy statements, reports to shareholders, financial statements
and such other information relating to the Series as the Sub-Adviser may
reasonably request. The Sub-Adviser agree to furnish to the Adviser and to the
Corporation such information concerning its own affairs as the Adviser or the
Corporation may reasonably request, including copies of its Form ADV and any
other filings of the Sub-Adviser with the U.S. Securities and Exchange
Commission and certified copies of its financial statements.
5. Status of Sub-Adviser. The services of the Sub-Adviser to the Adviser and
the Series are not deemed exclusive, and the Sub-Adviser shall be free to
render similar services to others.
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6. Liability of Sub-Adviser. In the absence of (i) willful misfeasance, bad
faith or gross negligence on the part of the Sub-Adviser in performance of its
obligations and duties hereunder, (ii) reckless disregard by the Sub-Adviser of
its obligations and duties hereunder or (iii) a loss resulting from a breach of
fiduciary duty by the Sub-Adviser with respect to the receipt of compensation
for its 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 Investment Company
Act of 1940 (the "1940 Act"), the Sub-Adviser shall not be subject to any
liability whatsoever to the Adviser or the Series, or to any shareholder of the
Series, for any error of judgment, mistake of law or any other act or omission
in the course of, or connected with, rendering services hereunder including,
without limitation, for any losses that may be sustained in connection with the
purchase, holding, redemption or sale of any security on behalf of the Series.
7. Permissible Interests. Subject to and in accordance with the Articles of
Incorporation of the Corporation and applicable law and regulation, Directors,
officers, agents and shareholders of the Corporation and/or the Adviser are or
may be interested in the Sub-Adviser (or any successor thereof) as Directors,
officers, agents, shareholders or otherwise; Directors, officers, agents and
shareholders of the Sub-Adviser are or may be interested in the Corporation
and/or the Adviser as Directors, officers, shareholders or otherwise; and the
Sub-Adviser (or any successor) is or may be interested in the Corporation
and/or the Adviser as a shareholder or otherwise; and the effect of any such
interrelationships shall be governed by said Articles of Incorporation and the
provisions of the 1940 Act.
8. Duration and Termination. This Agreement, unless sooner terminated as
provided herein, shall continue until June 30, 2008 and thereafter shall
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continue for periods of one year so long as such continuance is specifically
approved at least annually (a) by the Adviser and (b) (1) by the vote of a
majority of those members of the Board of Directors of the Corporation 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
(2) by the Board of Directors of the Corporation or by vote of a majority of
the outstanding voting securities of the Series. This Agreement may be
terminated by the Adviser or by the Series at any time, without the payment of
any penalty (in the case of termination by the Series, by vote of a majority of
the entire Board of Directors of the Corporation or by vote of a majority of
the outstanding voting securities of the Series), on 60 days' written notice to
the Sub-Adviser and, in the case of termination by the Adviser, to the
Corporation. This Agreement may be terminated by the Sub-Adviser at any time,
without the payment of any penalty, upon 60 days' written notice to the Adviser
and the Series. This Agreement will automatically and immediately terminate in
the 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 and shall be deemed given when received by the addressee.
As used in this Section 9, the terms "assignment", "interested persons", and
"a vote of a majority of the outstanding voting securities" shall have the
respective meanings set forth in Section 2(a)(4), Section 2(a)(19) and
Section 2(a)(42) of the 1940 Act.
9. Amendment of Agreement. This Agreement may be amended by mutual consent
of the parties, but the consent of the Corporation must also be obtained, which
consent must be approved (a) by vote of majority of those members of the Board
of Directors of the Corporation who are not parties to this Agreement or
interested
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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 Series.
10. Severability. If any provisions 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.
11. Applicable Law. This Agreement shall be construed in accordance with the
laws of the State of New York, provided, however, that nothing herein shall be
construed as being inconsistent with the 1940 Act.
12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their officers thereunto duly authorized as of the day and year first written
above.
THE BANK OF NEW YORK XXXXXX SECURITIES MANAGEMENT, INC.
By By
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Name: Name:
Title: Title:
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