TRANSFER, CONSENT AND RESTATEMENT AGREEMENT
EXHIBIT
(D)(6)
THIS
TRANSFER, CONSENT AND RESTATEMENT AGREEMENT (this "Agreement") is made
as of
this 31st
day of
May, 2005 by and among North Track Funds, Inc., a Maryland corporation ("North
Track"), on behalf of its various mutual fund series (each, a "Fund" and
collectively, the "Funds"), X.X. Xxxxxxx and Company, a Wisconsin corporation
("X.X. Xxxxxxx"), and Xxxxxxx Capital Management, LLC, a Wisconsin limited
liability company ("ZCM").
RECITALS:
WHEREAS,
X.X. Xxxxxxx and ZCM are each wholly-owned subsidiaries of The Xxxxxxx
Companies, Inc. (“Xxxxxxx Companies”);
WHEREAS,
X.X. Xxxxxxx presently serves as investment advisor (a) to the Dow Xxxxx
Equity
Income 100 Plus Fund pursuant to the terms of an Investment Advisory Agreement
between X.X. Xxxxxxx and North Track dated as of December 17, 2004 (the "Equity
Income Fund Advisory Agreement"); (b) to the Strategic Allocation Fund pursuant
to the terms of an Investment Advisory Agreement between X.X. Xxxxxxx and
North
Track dated as of December 10, 2003 (the "Strata Fund Advisory Agreement");
and
(c) to all of the other Funds pursuant to the terms of an Investment Advisory
Agreement between X.X. Xxxxxxx and North Track dated as of December 31, 1998,
as
amended (the "Other Funds Advisory Agreement"; collectively, with the Equity
Income Fund Advisory Agreement and the Strata Fund Advisory Agreement,
the
"Advisory Agreements");
WHEREAS,
Xxxxxxx Companies is undertaking a reorganization of the asset management
business currently conducted by X.X. Xxxxxxx, under which, effective as of
12:01
a.m., Central time, on June 1, 2005, certain assets related to the asset
management business, including the provision of investment advisory services
to
the Funds pursuant to the Advisory Agreements, will be distributed to Xxxxxxx
Companies and then contributed by Xxxxxxx Companies to ZCM pursuant to ZCM’s
Operating Agreement (the "Asset Management Reorganization");
WHEREAS,
the parties desire and intend that, following the Asset Management
Reorganization, ZCM shall carry on and conduct the duties and
responsibilities of X.X. Xxxxxxx as investment advisor to the Funds on terms
and
conditions, including the scope of investment management services to be provided
and the fees to be paid by the Funds for those services, which are identical
to
the terms of the relevant Advisory Agreements for the Funds;
WHEREAS,
in order to effect the Asset Management Reorganization, it is necessary for
X.X.
Xxxxxxx to transfer its rights and responsibilities under the Advisory
Agreements to ZCM, through Xxxxxxx Companies, and for ZCM to agree to assume
and
perform all of X.X. Xxxxxxx'x responsibilities under the Advisory
Agreements;
EXHIBIT
(D)(6)
WHEREAS,
all of the parties hereto agree and consent to the transfer of the Advisory
Agreements by X.X. Xxxxxxx to ZCM, through Xxxxxxx Companies;
WHEREAS,
the parties therefore intend that the Advisory Agreements should each be
amended
and restated solely to substitute ZCM for X.X. Xxxxxxx as investment advisor
thereunder, and not to make any other changes thereto;
NOW,
THEREFORE, for and in consideration of the mutual promises set forth herein,
and
for other good and valuable consideration, the receipt and sufficiency of
which
is acknowledged by all parties hereto, the parties hereto agree as
follows:
1. Transfer
and Consent.
Effective at 12:01 a.m., Central local time on June 1, 2005 (the "Effective
Time"), X.X. Xxxxxxx hereby distributes to Xxxxxxx Companies all of its rights,
duties and obligations under each of the Advisory Agreements, and Xxxxxxx
Companies hereby contributes to ZCM all of such rights, duties and obligations.
Upon such distribution and contribution, ZCM agrees to become bound by the
terms
and conditions of each of the Advisory Agreements and to assume, discharge,
perform and become liable for the performance of all of X.X. Xxxxxxx'x duties
and obligations under each of the Advisory Agreements. North Track, by action
of
its Board of Directors, confirms its consent to such distribution and
contribution. Accordingly, from and after the Effective Time, the Advisory
Agreements, as amended and restated pursuant to Section 2 below, shall continue
in full force and effect with all duties and obligations of X.X. Xxxxxxx
thereunder becoming the duties and obligations of ZCM, and all rights of
X.X.
Xxxxxxx under the Advisory Agreements becoming the rights of ZCM enforceable
by
ZCM.
2. Amendment
and Restatement of Advisory Agreements.
At the
Effective Time, the investment advisor to the Funds shall be changed from
X.X.
Xxxxxxx to ZCM and the Advisory Agreements shall each be amended and restated
solely to substitute ZCM for X.X. Xxxxxxx as investment advisor
thereunder.
3. Effect
of Transfer, Amendment and Restatement.
Because
(among other factors): (a) X.X. Xxxxxxx and ZCM are under common control,
with
each owned by The Xxxxxxx Companies, Inc.; (b) all of the investment and
managerial personnel of X.X. Xxxxxxx who are currently responsible for the
investment advisory services that X.X. Xxxxxxx provides to the Funds will
continue in those roles as personnel of ZCM following the Asset Management
Reorganization; and (c) the terms and conditions applicable to ZCM's
provision of investment advisory services to the Funds following the Asset
Management Reorganization, as set forth in the amended and restated Advisory
Agreements, will be identical to the corresponding terms and conditions of
the
current Advisory Agreements, including without limitation, the scope of the
services to be provided, the standard of care and the fees to be charged
for
those services, the parties hereto acknowledge and intend that the transfer
described above, the change of investment advisor to the Funds from X.X.
Xxxxxxx
to ZCM, and the amendment and restatement of the Advisory Agreements in
connection with the Asset Management Reorganization as contemplated herein
shall not be deemed an "assignment" within the meaning of the Investment
Company
Act of 1940 by virtue or Rule 2a-6 thereunder.
EXHIBIT
(D)(6)
IN
WITNESS WHEREOF,
each of
the parties hereto caused this Agreement to be executed on its behalf by
its
duly authorized officer as of the date first written above.
NORTH
TRACK FUNDS, INC.
By:
/s/
Xxxxx
X. Xxxxxxxx
Xxxxx
X.
Xxxxxxxx, President
X.X.
XXXXXXX AND COMPANY
By:
/s/
Xxxx
X. Xxxxxxxx
Xxxx
X.
Xxxxxxxx, Chief Executive Officer
XXXXXXX
CAPITAL MANAGEMENT, LLC
By:
/s/
Xxxxx
X. Xxxxxxxx
Xxxxx
X.
Xxxxxxxx, President
