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EXHIBIT-99.B(5)(a)
AMENDED ADVISORY CONTRACT
CASH INVESTMENT TRUST
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
March 1, 1994
Xxxxx Fargo Bank, N.A.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
This will confirm the agreement between the undersigned (the
"Trust") on behalf of the Cash Investment Trust Master Portfolio (the
"Portfolio") and Xxxxx Fargo Bank, N.A. (the "Adviser") as follows:
1. The Trust is a registered open-end management investment
company currently consisting of four investment portfolios, but which may from
time to time consist of a greater or lesser number of investment portfolios
(the "Portfolios"). The Cash Investment Trust Master Portfolio is one of the
four Portfolios. The Trust proposes to engage in the business of investing and
reinvesting the assets of the Portfolio in the manner and in accordance with
the investment objective and restrictions specified in the Trust's Registration
Statement, as amended from time to time (the "Registration Statement"), filed
by the Trust under the Investment Company Act of 1940 (the "Act"). Copies of
the documents referred to in the preceding sentence have been furnished to the
Adviser. Any amendments to those documents shall be furnished to the Adviser
promptly.
2. The Trust is engaging the Adviser to manage the investing and
reinvesting of the Portfolio's assets and to provide the advisory services
specified elsewhere in this contract to the Portfolio, subject to the overall
supervision of the Board of Trustees of the Trust. Pursuant to an
administration agreement between the Trust and Xxxxxxxx Inc. (the
"Administrator"), the Trust has engaged the Administrator to provide the
administrative services specified therein.
3. (a) The Adviser shall make investments for the account of the
Portfolio in accordance with the Adviser's best judgment and consistent with
the investment objective and restrictions set forth in the Trust's Registration
Statement, the Act and the provisions of the Internal Revenue Code relating to
regulated investment companies, subject to policy decisions adopted by the
Trust's Board of Trustees. The Adviser shall advise the Trust's officers and
Board of Trustees, at such times as the Trust's Board of Trustees may specify,
of investments made for the Portfolio and shall, when requested by the Trust's
officers or Board of Trustees, supply the reasons for making particular
investments.
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(b) The Adviser shall provide to the Trust investment
guidance and policy direction in connection with its daily management of the
Portfolio's assets, including oral and written research, analysis, advice,
statistical and economic data and information and judgments, and shall furnish
to the Trust's Board of Trustees periodic reports on the investment strategy
and performance of the Portfolio and such additional reports and information as
the Trust's Board of Trustees and officers shall reasonably request.
(c) The Adviser shall pay the costs of printing and
distributing all materials relating to the Portfolio prepared by it, or
prepared at its request, other than such costs relating to proxy statements,
prospectuses, reports for holders of beneficial interests ("Interests") of the
Portfolio ("Holders") and other materials distributed to existing or
prospective Holders on behalf of the Portfolio.
(d) The Adviser shall, at its expense, employ or associate
with itself such persons as the Adviser believes appropriate to assist it in
performing its obligations under this contract.
4. Except as provided in the Trust's Advisory Contracts and
Administration Agreement, the Trust shall bear all costs of its operations,
including the compensation of its trustees who are not affiliated with the
Adviser, the Administrator or any of their affiliates; advisory and
administration fees; governmental fees; interest charges; taxes; fees and
expenses of its independent auditors, legal counsel, transfer agent and
dividend disbursing agent; expenses of redeeming shares; expenses of preparing
and printing stock certificates, prospectuses, Holders' reports, notices, proxy
statements and reports to regulatory agencies; travel expenses of trustees,
officers and employees; office supplies; insurance premiums and certain
expenses relating to insurance coverage; trade association membership dues;
brokerage and other expenses connected with the execution of portfolio
securities transactions; fees and expenses of any custodian, including those
for keeping books and accounts and calculating the net asset value per share of
the Portfolio; expenses of Holders' meetings; expenses relating to the
issuance, and any registration and qualification of, shares of the Portfolio;
pricing services, if any; organizational expenses; and any extraordinary
expenses. Expenses attributable to one or more, but not all, of the Portfolios
are to be charged against the assets of the relevant Portfolios. General
expenses of the Trust are allocated among the Portfolios in a manner
proportionate to the net assets of each Portfolio, on a transactional basis or
on such other basis as the Board of Trustees deems equitable.
5. The Adviser shall give the Trust and the Portfolio the
benefit of the Adviser's best judgment and efforts in rendering services under
this contract. As an inducement to the Adviser's undertaking to render these
services, the Trust agrees that the Adviser shall not be liable under this
contract for any mistake in judgment or in any other event whatsoever except
for lack of good faith, provided that nothing in this contract shall be deemed
to protect or purport to protect the Adviser against any liability to the Trust
or its Holders to which the Adviser would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of the
Adviser's duties under this contract or by reason of reckless disregard of its
obligations and duties hereunder.
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6. In consideration of the services to be rendered by the
Adviser under this contract, the Portfolio shall pay the Adviser a monthly fee
on the first business day of each month, at the annual rate of 0.25% of the
average daily value (as determined on each day that such value is determined
for the Portfolio at the time set forth in the Registration Statement for
determining net asset value per share) of the Portfolio's net assets during the
preceding month. If the fee payable to the Adviser pursuant to this paragraph
6 begins to accrue after the beginning of any month or if this contract
terminates before the end of any month, the fee for the period from the
effective date to the end of that month or from the beginning of that month to
the termination date, respectively, shall be prorated according to the
proportion that the period bears to the full month in which the effectiveness
or termination occurs. For purposes of calculating each such monthly fee, the
value of the Portfolio's net assets shall be computed in the manner specified
in the Registration Statement and the Trust's Declaration of Trust for the
computation of the value of the Portfolio's net assets in connection with the
determination of the net asset value of Portfolio shares.
7. If in any fiscal year the total expenses of the Portfolio or
any registered investment company investing in the Portfolio ("Investing
Company") incurred by, or allocated to, the Portfolio or any Investing Company,
excluding taxes, interest, brokerage commissions and other portfolio
transaction expenses, other expenditures that are capitalized in accordance
with generally accepted accounting principles, extraordinary expenses and
amounts accrued or paid under any Rule 12b-1 Plan, but including the fees
provided for in paragraph 6 and those provided for pursuant to the Trust's
Administration Agreement ("includable expenses"), exceed the most restrictive
expense limitation applicable to the Portfolio and/or Investing Company imposed
by state securities laws or regulations thereunder, as these limitations may be
raised or lowered from time to time, the Adviser shall waive or reimburse that
portion of the excess derived by multiplying the excess by a fraction, the
numerator of which shall be the percentage at which the excess portion
attributable to the fee payable pursuant to this agreement is calculated under
paragraph 6 hereof, and the denominator of which shall be the sum of such
percentage plus the percentage at which the excess portion attributable to the
fee payable pursuant to the Trust's Administration Agreement is calculated (the
"Applicable Ratio"), but only to the extent of the fee hereunder for the fiscal
year. If the fees payable under this agreement and/or the Trust's
Administration Agreement contributing to such excess portion are calculated at
more than one percentage rate, the Applicable Ratio shall be calculated
separately on the basis of, and applied separately to, the portions of the fees
calculated at the different rates. At the end of each month of the Portfolio's
fiscal year, the Portfolio shall review the includable expenses accrued during
that fiscal year to the end of the period and shall estimate the contemplated
includable expenses for the balance of that fiscal year. If as a result of
that review and estimation it appears likely that the includable expenses will
exceed the limitations referred to in this paragraph 7 for a fiscal year with
respect to the Portfolio, the monthly fee set forth in paragraph 6 payable to
the Adviser for such month shall be reduced, subject to a later adjustment, by
an amount equal to the Applicable Ratio times the pro rata portion (prorated on
the basis of the remaining months of the fiscal year, including the month just
ended) of the amount by which the includable expenses for the fiscal year are
expected to exceed the limitations provided for in this paragraph 7. For
purposes of computing the excess, if any, over the most restrictive applicable
expense limitation, the value of the Portfolio's net assets shall be computed
in the manner specified in the last sentence of
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paragraph 6, and any reimbursements required to be made by the Adviser shall be
made once a year promptly after the end of the Portfolio's fiscal year.
8. This contract shall continue in effect only so long as the
continuance is specifically approved at least annually (a) by the vote of a
majority of the Portfolio's outstanding voting securities (as defined in the
Act) or by the Trust's Board of Trustees and (b) by the vote, cast in person at
a meeting called for the purpose, of a majority of the Trust's trustees who are
not parties to this contract or "interested persons" (as defined in the Act) of
any such party. This contract may be terminated at any time by the Trust or
the Portfolio, without the payment of any penalty, by a vote of a majority of
the Portfolio's outstanding voting securities (as defined in the Act) or by a
vote of a majority of the Trust's entire Board of Trustees on 60 days' written
notice to the Adviser or by the Adviser, at any time on 60 days' written notice
to the Trust and the Portfolio. This contract shall terminate automatically in
the event of its assignment (as defined in the Act).
9. Except to the extent necessary to perform the Adviser's
obligations under this contract, nothing herein shall be deemed to limit or
restrict the right of the Adviser, or any affiliate of the Adviser, or any
employee of the Adviser, to engage in any other business or to devote time and
attention to the management or other aspects of any other business, whether of
a similar or dissimilar nature, or to render services of any kind to any other
corporation, firm, individual or association.
10. Pursuant to Article V of the Trust's Declaration of Trust, no
Trustee, officer, employee or agent of the Trust shall be subject to any
personal liability whatsoever, in his or her official or individual capacity to
any person, other than to the Trust or its Holders, in connection with Trust
property or the affairs of the Trust, save only that arising from his or her
bad faith, willful misfeasance, gross negligence or reckless disregard of his
or her duty to such person; and all such persons shall look solely to the Trust
property (which may include any applicable insurance) for satisfaction of
claims of any nature against a Trustee, officer, employee or agent of the Trust
arising in connection with the affairs of the Trust. Each Holder shall be
jointly and severally liable (with rights of contribution inter se in
proportion to their respective Interest in the Trust) for the liabilities and
obligations of the Trust in the event that the Trust fails to satisfy such
liabilities and obligations; provided, however, that, to the extent assets are
available in the Trust, the Trust shall indemnify and hold each Holder harmless
from and against any claim or liability to which such Holder may become subject
by reason of his or her being or having been a Holder to the extent that such
claim or liability imposes on the Holder an obligation or liability which, when
compared to the obligations and liabilities imposed on other Holders, is
greater than his or her interest (proportionate share), and shall reimburse
such Holder for all legal and other expenses reasonably incurred by him or her
in connection with any such claim or liability. The rights accruing to a
Holder under Section 5.1 of the Trust's Declaration of Trust shall not exclude
any other right to which such Holder may be lawfully entitled, nor shall
anything herein contained restrict the right of the Trust to indemnify or
reimburse a Holder in any appropriate situation even though not specifically
provided herein. Notwithstanding the indemnification procedure described
above, it is intended that each Holder shall remain jointly and severally
liable to the creditors as a legal matter.
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In addition, no Trustee, officer, employee or agent of the Trust
shall be liable to the Trust, Holders, or to any Trustee, officer, employee, or
agent thereof for any action or failure to act (including, without limitation,
the failure to compel in any way any former or acting Trustee to redress any
breach of trust) except for his or her own bad faith, willful misfeasance,
gross negligence or reckless disregard of his or her duties.
11. This contract shall be governed by and construed in
accordance with the laws of the State of California.
If the foregoing correctly sets forth the agreement between the
Trust and the Adviser, please so indicate by signing and returning to the Trust
the enclosed copy hereof.
Very truly yours,
MASTER INVESTMENT TRUST,
on behalf of the Cash Investment Trust
Master Portfolio
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Name: Xxxxxxx X. Xxxxx, Xx.
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Title: Chief Operating Officer
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ACCEPTED as of the date
set forth above:
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxxxx
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Title: Vice President
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By: /s/ X.X. Xxxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxxx
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Title: Executive Vice President
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