Exhibit 23D(7)
THE PENN STREET FUND, INC.
SUB-INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT is made as of the 23rd day of May, 2002 and amended as of
the __ day of ____________, 2003, between The Penn Street Fund, Inc. (the
"Company"), Citco-Quaker Fund Advisors, Inc. a registered investment adviser and
Investment Adviser to each series of the Company (the "Fund Manager") and
Cumberland Advisors, Inc. (the "Sub-Adviser").
RECITALS
WHEREAS, the Company is organized under the laws of the state of Maryland
as a corporation and operates and is registered as an open-end management
investment company of the series type under the Investment Company Act of 1940,
as amended (the "1940 Act");
WHEREAS, the Company is authorized by its Articles of Incorporation and
by-laws to issue separate Portfolios of shares representing interests in
separate investment portfolios (the "Portfolios");
WHEREAS, The Company has authorized the issuance of shares of beneficial
interest in, among others, certain Portfolios known as Cumberland ETF Portfolio,
Cumberland Taxable Income Portfolio, & Cumberland Pennsylvania Tax Exempt
Portfolio (each a "Fund" and together the "Funds");
WHEREAS, Sub-Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended (the "Adviser's Act") and engages in
the business of asset management;
WHEREAS, the Company has retained Fund Manager to furnish investment
advisory services to each series of the Company, including the Funds, pursuant
to a written agreement for such services;
WHEREAS, the Fund Manager desires to retain Sub-Adviser to furnish
day-to-day investment advisory services to the Funds pursuant to the terms and
conditions of this Agreement, Sub-Adviser is willing to so furnish such
services, and the Company has approved such engagement;
NOW THEREFORE, in consideration of the foregoing and the agreements and
covenants herein contained, the parties hereto, intending to be legally bound,
agree as follows:
1. Appointment
The Company and Fund Manager hereby appoint the Sub-Adviser to provide
day-to-day investment advisory services to the Funds for the periods and on the
terms set forth in this Agreement. Sub-Adviser accepts the appointment and
agrees to furnish the services herein set forth for the compensation herein
provided.
2. Delivery of Documents
The Company and/or Fund Manager have furnished Sub-Adviser with properly
certified or authenticated copies of each of the following:
a. The Company's Articles of Incorporation as filed with the State of
Maryland; k. The Company's By-Laws;
b. Resolutions of the Company's Board of Directors authorizing the
appointment of Sub-Adviser and approving this Agreement;
c. The Company's most current Registration Statement on form N-1A
promulgated under the 1940 Act and under the Securities Act of 1933,
as amended (the "1933 Act");
d. The Company's current Prospectus and Statement of Additional
Information (together called the "Prospectus")
e. All compliance policies and/or procedures adopted by the Board of
Directors of the Company that are applicable to the operations of the
Fund.
The Company and/or Fund manager will furnish Sub-Adviser with properly
certified or authenticated copies of all amendments of or supplements to the
foregoing at the same time as such documents are required to be filed with the
SEC and/or state authorities, or at such time as officially adopted by the Board
of Directors of the Company.
3. Management
Subject to the supervision of the Company's Board of Directors and Fund
Manager, Sub-Adviser will provide a continuous investment program for the Funds,
including investment research and management with respect to all securities,
investments, cash and cash equivalents in the Funds. Sub-Adviser will determine
from time to time what securities and other investments will be purchased,
retained or sold by the Funds. Sub-Adviser will provide the services under this
Agreement in accordance with each Fund's investment objectives, policies and
restrictions as such are set forth in the Funds' prospectus from time to time.
Sub-Adviser further agrees that it:
(a) Will conform its activities in all material respects to all applicable
rules and regulations adopted by the U.S. Securities and Exchange
Commission (the "SEC") and will, in addition, conduct its activities
under this agreement in accordance with the regulations of any other
federal and state agency which may now or in the future have
jurisdiction over its activities under this Agreement;
(b) Will place orders pursuant to its investment determinations for the
Funds either directly with the respective issuers or with any broker
or dealer. In placing orders with brokers or dealers, Sub-Adviser will
attempt to obtain the best net price and the most favorable execution
of its orders under the circumstances. Consistent with this
obligation, when Sub-Adviser believes two or more brokers
or dealers are comparable in price and execution, Sub-Adviser may
prefer: (I) brokers and dealers who provide Sub-Adviser with research
advice and other services, or who recommend or sell Company shares,
and (II) brokers who are affiliated with the Fund, Adviser, and/or
Sub-Adviser; provided, however, that in no instance will portfolio
securities be purchased from or sold to Sub-Adviser in principal
transactions. The Board of Directors of the Company has adopted
procedures pursuant to Rule 17a-7 and Rule 17e-1 with respect to
transactions between the Funds and affiliated persons and the Funds
and Affiliated broker/dealers, respectively; and
(c) Will provide, at its own cost, all office space, facilities and
equipment necessary for the conduct of its advisory activities on
behalf of the Funds.
4. Services not Exclusive
(a) Services to Other Funds. The advisory services to be furnished by
Sub-Adviser hereunder are not to be considered exclusive, and
Sub-Adviser shall be free to furnish similar services to others so
long as its services under this Agreement are not materially impaired
thereby; provided, however, that without the written consent of the
Company's Board of Directors, which consent will not be unreasonably
withheld, Sub-Adviser will not serve as an investment advisor to any
other registered management investment company having a fund with
investment objectives and principal investment strategies
substantially similar to those of the Funds.
(b) Status of Sub-Adviser. Sub-Adviser shall for all purposes herein be
deemed to be an independent contractor and not an agent for the
Company, the Funds or the Fund Manager and shall, unless otherwise
expressly provided or authorized, have no authority to act for or
represent the Company, Funds or Fund Manager in any way.
5. Books and Records
In compliance with Rule 31a-3 promulgated under the 1940 Act, Sub-Adviser
hereby agrees that all records which it maintains for the benefit of the Funds
are the property of the Funds and further agrees to surrender promptly to the
Funds any of such records upon the Funds' request. Sub-Adviser further agrees to
preserve for the periods prescribed by Rule 31a-2 promulgated under the 1940
Act, the records required to be maintained by it pursuant to Rule 31a-1
promulgated under the 1940 Act resulting from the services to the Funds provided
by Sub-Adviser pursuant to Section 3 of this Agreement.
6. Expenses
During the term of this Agreement, Sub-Adviser will pay all expenses
incurred by it in connection with its investment advisory services furnished to
the Funds other than the costs of securities and other investments (including
brokerage commissions and other transaction charges) purchased or sold for the
Funds.
7. Compensation
The Fund Manager will pay to Sub-Adviser, and Sub-Adviser will accept as
full compensation for its services rendered hereunder, an investment advisory
fee, computed at the end of each month and payable within five (5) business days
thereafter, equal to the annual rate of:
0.38% of the average daily net assets of the Cumberland Taxable Income
Portfolio
-----% of the average daily net assets of the Cumberland ETF Portfolio; and
-----% of the average daily net assets of the Cumberland Pennsylvania Tax
Exempt Portfolio
All parties to this Agreement do hereby authorize and instruct the Fund's
Administrator, Citco-Quaker Fund Services, Inc., or its successor, to provide a
calculation each month of the gross amount due the Sub-Advisor and to remit such
fee payments directly to Sub-Adviser. In the event that Sub-Adviser's services
to the Fund begin or end at a time other than the beginning or end of a month,
fees payable to the Sub-Adviser will be prorated for that portion of the month
during which services were actually provided.
During the term of this Agreement, Sub-Adviser may, from time to time,
waive receipt of some or all of its fee and/or reimburse the Fund for other
expenses incurred by the Fund in order to assist the Fund to maintain a certain
overall expense ratio, such expense ratio to be determined by the Sub-Adviser at
its discretion. Sub-Adviser is under no obligation to waive receipt of its fees,
reimburse the Fund for expenses, or attempt in any manner to maintain any
predetermined expense cap. Such actions and/or waivers on the part of
Sub-Adviser are entirely voluntary. However, in the event Sub-Adviser does
undertake such waivers and/or reimbursements, Sub-Adviser may recover such
waived fees and/or reimbursed expenses, at Sub-Adviser's discretion, at any time
for a period of thirty-six months subsequent to the time such waiver or
reimbursement is made.
8. Limitation of Liability
Sub-Adviser shall not be liable for any error of judgment, mistake of law
or for any other loss suffered by the Fund in connection with the performance of
this Agreement, except a loss resulting from a breach of Sub-Adviser's fiduciary
duty with respect to the receipt of compensation for services or a loss to the
Fund resulting from willful malfeasance, bad faith or gross negligence on its
part in the performance of its duties or from reckless disregard by it of its
obligations or duties under this Agreement.
9. Duration and Termination
This Agreement shall become effective as of the date first written above
and, unless sooner terminated as provided herein, shall continue in effect until
March 31, 2004. Thereafter, this Agreement shall be renewable for successive
periods of one year each, provided such continuance is specifically approved
annually:
(a) By the vote of a majority of those members of the Board of Directors
who are not parties to the Agreement or interested persons of any such
party (as that term is defined in the 1940 Act), cast in person at a
meeting called for the purpose of voting on such approval; and
(b) By vote of either the Board of Directors or a majority (as that term
is defined in the 0000 Xxx) of the outstanding voting securities of
the Fund.
Notwithstanding the foregoing, this Agreement may be terminated by the
Company or by Fund Manager or by Sub-Adviser at any time upon sixty (60) days
written notice, without payment of any penalty. Any such termination by the
Company must be authorized by vote of the Board of Directors or by vote of a
majority of the outstanding voting securities of the Fund. This Agreement will
automatically terminate in the event of its assignment (as that term is defined
in the 1940 Act).
10. Amendment of this Agreement
No provision of this Agreement may be changed, waived, discharged, or
terminated orally, but only by a written instrument signed by the party against
which enforcement of the change, waiver, discharge or termination is sought. No
material amendment of this Agreement shall be effective until approved by vote
of the holders of a majority of the Fund's outstanding voting securities (as
defined in the 1940 Act).
11. Miscellaneous
The captions in this Agreement are included for convenience of reference
only and in no way define or limit 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 the 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.
12. Counterparts
This Agreement may be executed in counterparts by the parties hereto, each
of which shall constitute an original, and all of which, together, shall
constitute one Agreement.
13. Governing Law
This Agreement shall be construed in accordance with, and governed by, the
laws of the Commonwealth of Pennsylvania.
14. Notices
Except as otherwise provided in this Agreement, any notice or other
communication required by or permitted to be given in connection with this
Agreement will be in writing and will be delivered in person or sent by first
class mail, postage prepaid or by prepaid overnight delivery service to the
respective parties as follows:
If to the Company: If to the Sub-Adviser:
------------------ ----------------------
The Penn Street Fund, Inc. Cumberland Advisors, Inc.
0000 Xxxxxx Xxxxx Xxxx, Xxxxx 00 000 Xxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: G. Xxxxxxx Xxxx Attn: Xxxxx X. Xxxxx
Chairman Title: President & Chief Investment
Officer
If to the Fund Manager:
-----------------------
Citco-Quaker Fund Advisors, Inc.
0000 Xxxxxx Xxxxx Xxxx, Xxxxx 00
Xxxxxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxx
President
15. Disclosures
Neither the Company, the Fund nor the Fund Manager shall, without the
written consent of Sub-Adviser, which consent shall not be unreasonably
withheld, make representations regarding the Sub-Adviser or any of its
affiliates in any disclosure document, advertisement, sales literature or other
promotional materials. The Sub-Adviser shall respond in writing within five (5)
business days of any such request for prior written consent and in the event
Sub-Adviser does not so respond, Sub-Adviser shall be deemed to have consented
to the disclosure document, advertisement, sales literature or other promotional
materials submitted to the Sub-Adviser.
16 Non-Liability of Directors and Shareholders
All obligations of the Fund hereunder shall be binding only upon the assets
of the Fund and shall not be binding upon any Director, officer, employee, agent
or shareholder of the Fund. Neither the authorization of any action by the
Directors or shareholders of the Fund nor the execution of this Agreement on
behalf of the Fund shall impose any liability upon any Director, officer or
shareholder of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their officers designated below as of the day and year first written above.
Attest: THE PENN STREET FUND, INC.
_____________________________ __________________________________
By: _________________________ By: G. Xxxxxxx Xxxx
Title: Secretary Title: President
Attest: CITCO-QUAKER FUND ADVISORS, INC.
_____________________________ __________________________________
By: ________________________ By: Xxxx X. Xxxxx
Title: ______________________ Title: President
Attest: CUMBERLAND ADVISORS, INC.
_____________________________ _____________________________________
By: ________________________ By: Xxxxx X. Xxxxx
Title: _____________________ Title: President & Chief Investment
Officer
