THE XXXXXX TRUST
MANAGEMENT AGREEMENT
AGREEMENT made this 1st day of November, 2002, between The Xxxxxx Trust
(the "Trust"), a business trust organized under the laws of the State of
Delaware with its principal place of business at Two Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxx 00000, and Forum Administrative Services, LLC (the "Manager"), a
corporation organized under the laws of State of Delaware with its principal
place of business at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "Act"), as an open-end management investment company and
may issue its shares of beneficial interest, no par value (the "Shares") in
separate series and classes; and
WHEREAS, the Trust desires to employ the Manager to perform
administrative services for certain investment portfolios of the Trust as listed
on Schedule A hereto (each a "Fund" and, collectively, the "Funds") and the
Manager is willing to provide those services on the terms and conditions set
forth in this Agreement;
NOW THEREFORE, the Trust and Manager agree as follows:
SECTION 1. EMPLOYMENT. The Trust hereby employs the Manager, and the
Manager agrees, to act as manager of the Trust for the period and on the terms
set forth in this Agreement. In connection therewith, the Trust has delivered to
the Manager copies of its Trust Instrument and Bylaws, the Trust's Registration
Statement and all amendments thereto filed pursuant to the Securities Act of
1933, as amended (the "Securities Act") or the Act (the "Registration
Statement") and the current Prospectus and Statement of Additional Information
of each Fund (collectively, as currently in effect and as amended or
supplemented, the "Prospectus") and, shall promptly furnish the Manager with all
amendments of or supplements to the foregoing.
SECTION 2. ADMINISTRATIVE DUTIES.
(a) Subject to the direction and control of the Trust's Board of
Directors (the "Board"), the Manager shall manage all aspects of the Trust's
operations with respect to the Funds except those that are the responsibility of
Xxxxxx & Company, LLC or any other investment adviser to a Fund (the "Adviser"),
all in such manner and to such extent as may be authorized by the Board.
(b) With respect to the Trust or each Fund, as applicable, the Manager
shall:
(i) oversee (A) the preparation and maintenance by the Adviser and
the Trust's custodian, transfer agent, dividend disbursing agent
and fund accountant (or if appropriate, prepare and maintain) in
such form, for such periods and in such locations as may be
required by applicable law, of all documents and records relating
to the operation of the Trust required to be prepared or
maintained by the Trust or its agents pursuant to applicable law;
(B) the reconciliation of account information and balances among
the Adviser and the Trust's custodian, transfer agent, dividend
disbursing agent and fund accountant; (C) the transmission of
purchase and redemption orders for Shares; (D) the notification
to the Adviser of available funds for investment; and (E) the
performance of fund accounting, including the calculation of the
net asset value of the Shares;
(ii) oversee the performance of administrative and professional
services rendered to the Trust by others, including its
custodian, transfer agent and dividend disbursing agent as well
as legal, auditing and shareholder servicing and other services
performed for the Funds;
(iii)be responsible for the preparation and the printing of the
periodic updating of the Registration Statement and Prospectus,
tax returns, and reports to shareholders, the Securities and
Exchange Commission and state securities commissions;
(iv) be responsible for the preparation of proxy and information
statements and any other communications to shareholders;
(v) at the request of the Board, provide the Trust with adequate
general office space and facilities and provide persons suitable
to the Board to serve as officers of the Trust;
(vi) provide the Trust with the services of persons, who may be
officers of the Trust, competent to perform such supervisory,
administrative and clerical functions as are necessary to provide
effective operations of the Trust;
(vii)prepare, file and maintain the Trust's governing documents,
including the Trust Instrument, the Bylaws and minutes of
meetings of Trustees and shareholders;
(viii) with the approval of the Trust's counsel and cooperation from
the Adviser and other relevant parties, prepare and disseminate
materials for meetings of the Board of Trustees;
(ix) monitor sales of shares and ensure that such shares are properly
and duly registered with the Securities and Exchange Commission
and applicable state securities commissions;
(x) oversee the calculation of performance data for dissemination to
information services covering the investment company industry,
for sales literature of the Trust and other appropriate purposes;
(xi) oversee the determination of the amount of and supervise the
declaration of dividends and other distributions to shareholders
as necessary to, among other things, maintain the qualification
of each Fund as a regulated investment company under the Internal
Revenue Code of 1986, as amended, and prepare and distribute to
appropriate parties notices announcing the declaration of
dividends and other distributions to shareholders;
(xii) oversee the payment of the Trust's expenses; and
(xiii)advise the Trust and the Board on matters concerning the Trust
and its affairs.
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(c) The books and records pertaining to the Trust which are in
possession of the Manager shall be the property of the Trust. The Trust, the
Adviser or the authorized representatives of either of them shall have access to
such books and records at all times during the Manager's normal business hours.
Upon the reasonable request of the Trust or the Adviser, copies of any such
books and records shall be provided promptly by the Manager to the Trust, the
Adviser or the authorized representatives of either of them. In the event the
Trust designates a successor to any of the Manager's obligations hereunder, the
Manager shall, at the expense and direction of the Trust, transfer to such
successor all relevant books, records and other data established or maintained
by the Manager under this Agreement.
SECTION 3. STANDARD OF CARE. The Manager shall give the Trust the
benefit of its best judgment and efforts in rendering its services to the Trust
and shall not be liable for error of judgment or mistake of law, for any loss
arising out of any investment, or in any event whatsoever, provided that nothing
herein shall be deemed to protect, or purports to protect, the Manager against
any liability to the Trust or to the security holders of the Trust to which it
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties hereunder, or by reason of reckless
disregard of its obligations and duties hereunder.
SECTION 4. EXPENSES. Subject to any expense reimbursement arrangements
between the Adviser or others and the Trust, the Trust shall be responsible and
assumes the obligation for payment of all its expenses.
SECTION 5. COMPENSATION.
(a) For the services provided by the Manager pursuant to this
Agreement, the Trust shall pay the Manager, with respect to each of the Funds, a
fee at an annual rate equal to the amount set forth in Schedule B hereto. Such
fees shall be accrued by the Trust daily and shall be payable monthly in arrears
on the first day of each calendar month for services performed under this
Agreement during the prior calendar month. Upon the termination of this
Agreement, the Trust shall pay to the Manager such compensation as shall be
payable prior to the effective date of such termination.
(b) Notwithstanding anything in this Agreement to the contrary, the
Manager and its affiliated persons may receive compensation or reimbursement
from the Trust with respect to (i) the provision of shareholder support or other
services or (ii) service as a Trustee or officer of the Trust.
SECTION 6. EFFECTIVENESS, DURATION AND TERMINATION.
(a) This Agreement shall become effective on the date on which the
Trust's Registration Statement relating to the shares of the Xxxxxx Equity
Income Fund, the Xxxxxx Approved List Equity Fund and the Xxxxxx Government
Securities Fund becomes effective and shall relate to every other Fund as of the
date on which the Trust's Registration Statement relating to the shares of such
Fund becomes effective. Upon the effectiveness of this Agreement, it shall
supersede all previous agreements among the Adviser, the Trust and the Manager,
or between any of them, covering the subject matter hereof.
(b) This Agreement shall continue in effect for twelve months and,
thereafter, shall be automatically renewed each year for an additional term of
one year.
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(c) This Agreement may be terminated with respect to a Fund at any
time, without the payment of any penalty, (i) by the Trust on 60 days' written
notice to the Adviser and the Manager or (ii) by the Manager on 60 days' written
notice to the Adviser and the Trust.
(d) This Agreement shall terminate automatically in the event of its
assignment.
SECTION 7. ACTIVITIES OF MANAGER. Except to the extent necessary to
perform its obligations under this Agreement, nothing herein shall be deemed to
limit or restrict the Manager's right, or the right of any of its officers,
directors or employees (whether or not they are a trustee, officer, employee or
other affiliated person of the Trust) 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, trust, firm, individual or association.
SECTION 8. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY. The
Trustees of the Trust and the shareholders of each Fund shall not be liable for
any obligation of the Trust or of the Funds under this Agreement, and the
Manager and the Adviser agree that, in asserting any rights or claims in
connection with any obligation of the Trust or of the Funds under this
Agreement, they shall look only to the assets and property of the Trust or the
Fund to which the Manager's or Adviser's rights or claims relate in settlement
of such rights or claims, and not to the Trustees of the Trust or the
shareholders of the Funds.
SECTION 9. MISCELLANEOUS.
(a) No provision of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties hereto and, if required by the Act, by a vote of a majority of the
outstanding voting securities of the Trust.
(b) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
(c) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(d) Notices, requests, instructions and communications received by the
parties at their respective principal places of business, or at such other
address as a party may have designated in writing, shall be deemed to have been
properly given.
(e) This Agreement shall be governed by and shall be construed in
accordance with the laws of the State of New York.
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(f) The terms "vote of a majority of the outstanding voting
securities," "interested person," and "affiliated person" shall have the
meanings ascribed thereto in the Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
THE XXXXXX TRUST
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Chairman and Vice President
FORUM ADMINISTRATIVE SERVICES, LLC
By: /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
President
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THE XXXXXX TRUST
MANAGEMENT AGREEMENT
SCHEDULE A
FUNDS OF THE TRUST
Xxxxxx Core Fund
Xxxxxx Value Fund
THE XXXXXX TRUST
MANAGEMENT AGREEMENT
SCHEDULE B
FEES
Fee as a % of
the Annual Average Daily
Fund Net Assets of the Fund
Xxxxxx Core Fund 0.10%
Xxxxxx Value Fund 0.10%
The Trust shall pay to the Manager a minimum annual fee of $40,000 for each
Fund.
