EXHIBIT 5.(c)
XXXXXXXXX XXXXXXXX INVESTMENT TRUST
INVESTMENT ADVISORY AGREEMENT
This INVESTMENT ADVISORY AGREEMENT ("Agreement") is made as of the 1st
day of October, 1997, by and between XXXXXXXXX XXXXXXXX INVESTMENT TRUST, a
business trust organized and existing under the laws of the Commonwealth of
Massachusetts (the "Trust"), with respect to its series of shares known as THE
XXXXXXXXX XXXXXXXX CONTRARIAN FUND (the "Fund"), and XXXXXXXXX, XXXXXXXX &
COMPANY INVESTMENT MANAGEMENT, L.P. (the "Adviser").
W I T N E S S E T H
WHEREAS, the Trust is an open-end diversified, management investment
company, registered as such under the Investment Company Act of 1940, as amended
(the "Act"); and
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended (the "Advisers Act"), and is engaged
in the business of supplying investment advice, investment management and
administrative services, as an independent contractor; and
WHEREAS, the Trust desires to retain the Adviser to render advice and
services to the Trust and Fund pursuant to the terms and provisions of this
Agreement, and the Adviser is interested in furnishing said advice and services;
NOW, THEREFORE, in consideration of the covenants and the mutual
promises hereinafter set forth, the parties hereto mutually agree as follows:
1. EMPLOYMENT OF ADVISER. (a) The Trust hereby employs the Adviser,
and the Adviser hereby accepts such employment, to render investment advice and
investment management services with respect to the assets of the Fund,
consistent with the investment objectives and policies of the Fund and subject
to the supervision and direction of the Trust's Board of Trustees. The Adviser
shall, except as otherwise provided for herein, render or make available all
administrative services needed for the management and operation of the Fund, and
shall, as part of its duties hereunder, (i) furnish the Trust with investment
advice, research and recommendations with respect to the investment of the
Fund's assets and the purchase and sale of its portfolio securities, including
the taking of such other steps as may be
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necessary to implement such advice and recommendations, (ii) furnish the Trust
and Fund with reports, statements and other data on securities, economic
conditions and other pertinent subjects which the Trust's Board of Trustees may
request, (iii) furnish such office space and personnel as are needed by the
Fund, and (iv) in general superintend and manage the investments of the Fund,
subject to the ultimate supervision and direction of the Trust's Board of
Trustees.
(b) The Adviser shall determine the securities to be purchased
or sold by the Fund and will place orders pursuant to its determinations with or
through such persons, brokers or dealers (including without limitation
Xxxxxxxxx, Xxxxxxxx & Company LLC) in conformity with the policy with respect to
brokerage as set forth in the Trust's Registration Statement and the Fund's
Prospectus and Statement of Additional Information or as the Trustees may direct
from time to time. The Adviser shall not execute portfolio transactions for the
account of the Fund with a broker or dealer which is an "affiliated person" (as
defined in the Act) of the Adviser or the Trust, except pursuant to procedures
adopted by the Trustees in accordance with Section 17(e) and Rule l7e-1 under
the Act. The Adviser shall render regular reports to the Trustees of the total
brokerage business placed and the manner in which the allocation has been
accomplished.
2. SUB-ADVISERS AND CONSULTANTS. The Adviser may from time to time,
in its discretion, delegate certain of its responsibilities under this Agreement
to one or more
qualified companies, each of which is registered under the Advisers Act,
provided that the separate costs of employing such companies and of the
companies themselves are borne by the Adviser and not by the Fund.
3. ADVISER IS INDEPENDENT CONTRACTOR. The Adviser shall, for all
purposes herein, be deemed to be an independent contractor, and shall, unless
otherwise expressly provided and authorized, have no authority to act for or
represent the Trust or Fund in any way, or in any way be deemed an agent for the
Trust or Fund. It is expressly understood and agreed that the services to be
rendered by the Adviser to the Trust and Fund under the provisions of this
Agreement are not to be deemed exclusive, and the Adviser shall be free to
render similar or different services to others so long as its ability to render
the services provided for in this Agreement shall not be impaired thereby.
4. RESPONSIBILITIES AND PERSONNEL OF ADVISER. The Adviser agrees to
use its best efforts the furnishing of investment advice, research and
recommendations to the Fund, in the preparation of reports and information, and
in the management of the Fund's assets, all pursuant to this Agreement, and for
this purpose the Adviser shall, at its own expense, maintain such staff and
employ or retain such personnel and consult with such other persons as it shall
from time to time determine to be necessary to the performance of its
obligations under this Agreement. Without limiting the generality of the
foregoing, the staff and personnel of the Adviser shall be deemed to include
persons employed or retained by the Adviser to furnish statistical, research,
and other factual information, advice regarding economic factors and
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trends, information with respect to technical and scientific developments, and
such other information, advice and assistance as the Adviser may desire and
request.
5. FURNISHING OF STATEMENTS AND REPORTS. The Trust shall from time to
time furnish to the Adviser detailed statements of the portfolio investments and
assets of the Fund and information as to its' investment objectives and needs,
and shall make available to the Adviser such financial reports, business
descriptions and plans, proxy statements, legal and other information relating
to its investments as may be in the possession of the Trust or available to it
and such other information as the Adviser may reasonably request.
6. EXPENSES OF EACH PARTY. (a) The Adviser shall bear all expenses in
connection with the performance of its services under this Agreement. The
Adviser shall also pay (i) all compensation, if any, to the executive officers
of the Fund and their related expenses and (ii) all compensation, if any, and
out-of-pocket expenses of the Trust's trustees who are "interested persons" of
the Trust (as defined in the Act).
(b) The Trust shall bear all expenses of the Fund's organization
operations, and business not specifically assumed or agreed to be paid by the
Adviser provided in this Agreement. In particular, but without limiting the
generality of the foregoing, the Trust on behalf of the Fund and out of the
Fund's assets shall pay:
(A) CUSTODY AND ACCOUNTING SERVICES. All expenses of the transfer,
receipt, safekeeping, servicing and accounting for the cash, securities,
and other property of the Fund, including without limitation all charges of
depositories, custodians, and other agents, if any;
(B) SHAREHOLDER SERVICING. All expenses of maintaining and
servicing shareholder accounts, including all charges for transfer,
shareholder recordkeeping, dividend disbursing, redemption, and other
agents for the benefit of the Fund;
(C) BOOKS AND RECORDS. All costs and expenses associated with
maintenance of the Fund's books of account and records as required by
the Act;
(D) SHAREHOLDER COMMUNICATIONS. All expenses of preparing,
printing and distributing reports and other communications to
shareholders;
(E) SHAREHOLDER-MEETINGS. All fees and expenses incidental to
holding meetings of shareholders, including without limitation the
printing of notices and proxy material, and proxy solicitation
therefor, provided that the Adviser shall be responsible for and
assume all expenses and fees with respect
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to meetings of the Fund's shareholders held solely for the benefit of the
Adviser;
(F) PROSPECTUSES AND STATEMENTS OF ADDITIONAL INFORMATION. All
expenses of preparing and printing of annual or more frequent
revisions of the Prospectus and Statement of Additional Information
relating to the offering of Fund's shares and of mailing them to
shareholders;
(G) PRICING. All expenses of computing the Fund's net asset
value per share, including without limitation the cost of any
equipment or services used for obtaining price quotations;
(H) COMMUNICATION EQUIPMENT. All charges for equipment or
services used for communication between the Adviser or the Trust and
the custodian, transfer agent or any other agent selected by the
Trust;
(I) LEGAL AND ACCOUNTING FEES AND EXPENSES. All charges for
services and expenses of the Trust's legal counsel and independent
auditors for the benefit of the Trust;
(J) TRUSTEES' FEES AND EXPENSES. All compensation of trustees,
other than those who are interested persons of or affiliated with the
Adviser, and all expenses incurred in connection with their service
and meetings;
(K) FEDERAL REGISTRATION FEES. All fees and expenses of
registering and maintaining the registration of the Trust under the
Act and the registration of Fund shares under the Securities Act of
1933, as amended (the "l933 Act"), including without limitation all
fees and expenses incurred in connection with the preparation,
printing, and filing of any registration statement, Prospectus and
Statement of Additional Information under the 1933 Act or the Act, and
any amendments or supplements thereto that may be made from time to
time;
(L) STATE REGISTRATION FEES. All fees and expenses (including,
without limitation the compensation of personnel who may be employed
by the Adviser or an affiliate) of qualifying and maintaining
qualification of the Trust and of the Fund shares for sale under
securities laws of various states or jurisdictions, and of
registration and qualification of the Trust under all other laws
applicable to the Trust or its business activities (including without
limitation registering the Trust as a broker-dealer, or any officer of
the Trust or any person as agent or salesman of the Trust in any
state);
(M) ISSUE AND REDEMPTION OF TRUST SHARES. All expenses incurred
in connection with the issue, redemption, and transfer of Fund shares,
including
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without limitation the expense of confirming all Fund share transactions,
and of preparing and transmitting the Fund's share certificates;
(N) BONDING AND INSURANCE. All expenses of bond, liability, and
other insurance coverage required by law or deemed advisable by the
Board of Trustees;
(0) BROKERAGE COMMISSIONS. All brokerage commissions and other
charges incident to the purchase, sale, or lending of the Fund's
portfolio securities;
(P) TAXES. All taxes or governmental fees payable by or with
respect of the Trust or Fund to federal, state, or other governmental
agencies, domestic or foreign, including without limitation stamp or
other transfer taxes;
(Q) TRADE ASSOCIATION FEES. All fees, dues, and other expenses
incurred in connection with the Trust's membership in any trade
association or other investment organization;
(R) INTEREST. All interest which may accrue and be payable as a
result of the Fund's activities;
(S) STATIONERY AND POSTAGE. The cost of all stationery and
postage required by the Fund, unless otherwise payable by another
party with respect to an activity or expense referred to above; and
(T) NONRECURRING AND EXTRAORDINARY EXPENSES. Such nonrecurring
expenses as may arise, including without limitation the costs of
actions, suits, or proceedings to which the Trust on behalf of the
Fund is a party and the expenses the Trust on behalf of the Fund may
incur as a result of its legal obligation to provide indemnification
to its officers, trustees, and agents.
(c) With respect to other series of shares of the Trust, the Fund
shall only be responsible for expenses directly attributable to it and its
operations and such other costs and expenses of the Trust as the Board of
Trustees may by resolution or otherwise direct.
7. REIMBURSEMENT FOR ADVANCED COSTS AND EXPENSES. To the extent the
Adviser incurs any costs or performs any services which are an obligation of the
Trust or the Fund, as set forth herein, the Trust on behalf of the Fund and out
of the Fund's assets shall promptly reimburse the Adviser for such costs and
expenses. To the extent the services for which the Fund is obligated to pay are
performed by the Adviser, the Adviser shall be entitled to recover from the Fund
only to the extent of its actual costs for such services.
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8. FEES. (a) The Trust on behalf of the Fund and out of the Fund's assets
agrees to pay to the Adviser, and the Adviser agrees to accept, as full
compensation for all services furnished or provided to the Trust and Fund
hereunder, and as full reimbursement for all expenses assumed by the Adviser, a
management fee computed at the rate of 1.50% per annum of the average daily net
assets of the Fund.
(b) The management fee shall be accrued daily during each month by
the Trust on behalf of the Fund and paid to the Adviser on the first business
day of the succeeding month. The initial monthly fee under this Agreement shall
be payable on the first business day of the first month following the effective
date of this Agreement. The fee to the Adviser shall be prorated for the
portion of any month in which this Agreement is in effect which is not a
complete month according to the proportion which the number of calendar days in
the month during which the Agreement is in effect bears to the number of
calendar days in the month. If this Agreement is terminated prior to the end of
any month, the fee to the Adviser shall be payable within ten 10 days after the
date of termination.
(c) To the extent that the gross operating costs and expenses of the
Fund (excluding any interest, taxes, brokerage commissions, distribution fees
paid pursuant to the Distribution Plan pursuant to Rule 12b-1, and, with the
prior written approval of any state securities commission requiring same, any
extraordinary expenses, such as litigation), exceed the most stringent expense
limitation requirement of the states in which shares of the Fund are qualified
for sale, the Adviser shall reimburse the Fund or waive its compensation
hereunder for the amount of such excess.
(d) The Adviser may reduce or waive any portion of the compensation
due to it hereunder, or for reimbursement of expenses by the Trust pursuant to
Paragraph 7 of this Agreement, and any such reduction or waiver shall be
applicable only with respect to the specific items waived and shall not
constitute a waiver of any future compensation or reimbursement due to the
Adviser hereunder.
9. SHORT POSITIONS IN FUND'S SHARES. The Adviser agrees that neither it
nor any of its officers or employees shall take any short position in the shares
of the Fund. This prohibition shall not prevent the purchase of such shares by
any of the officers and Trustees or employees of the Adviser or any trust,
pension, profit-sharing or other benefit plan for such persons or affiliates
thereof, at a price not less than the net asset value thereof at the time of
purchase, as allowed pursuant to rules promulgated under the Act.
10. RELATIONSHIP TO PROVISIONS OF AGREEMENT AND DECLARATION OF TRUST.
Nothing herein contained shall be deemed to require the Trust to take any action
contrary to its Agreement and Declaration of Trust or any applicable statute or
regulation, or to relieve or deprive the Board of Trustees of the Trust of its
responsibility for and control of the conduct of the affairs of the Trust and
Fund.
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11. DUTIES AND STANDARDS OF CARE. (a) In the absence of willful
misfeasance, bad faith, gross negligence, or reckless disregard of obligations
or duties hereunder on the part of the Adviser, the Adviser shall not be subject
to liability to the Trust, the Fund or to any shareholder of the Fund for any
act or omission in the course of, or connected with, rendering services
hereunder or for any losses that may be sustained in the purchase, holding or
sale of any security by the Fund.
(b) No provision of this Agreement shall be construed to protect any
Trustee or officer of the Trust or director or officer of the Adviser from
liability in violation of Sections 17(h) and (i) of the Act.
(c) A copy of the Agreement and Declaration of Trust of the Trust is
on file with the Secretary of State of The Commonwealth of Massachusetts and
notice is hereby given that this Agreement is executed on behalf of the Trustees
of the Trust as Trustees, and not individually, and that the obligations arising
out of this Agreement are not binding upon the Trustees or holders of the
Trust's shares individually but are binding only upon the assets and property of
the Fund. The Adviser acknowledges that it has received notice of and accepts
the limitations of liability as set forth in the Agreement and Declaration of
Trust of the Trust. The Adviser agrees that the Trust's obligations hereunder
shall be limited to the Fund and to its assets, and that the Adviser or any
affiliated or related party shall not seek satisfaction of any such obligation
from any shareholder of the Fund nor from any trustee, officer, employee or
agent of the Trust.
12. TERM AND RENEWAL. This Agreement shall remain in effect for a period
of two (2) years from the date hereof, unless sooner terminated in accordance
with Paragraph 13 hereof, and shall continue in effect from year to year
thereafter so long as such continuation is approved at least annually by (i) the
Board of Trustees of the Trust or by the vote of a majority of the outstanding
voting securities of the Fund, and (ii) the vote of a majority of the Trustees
of the Trust who are not parties to this Agreement or interested persons of any
such party, cast in person at a meeting for the purpose of voting on such
approval.
13. TERMINATION. This Agreement may be terminated at any time, without
payment of any penalty, by the Board of Trustees of the Trust or by a vote of a
majority of its outstanding voting securities, upon sixty (60) days' written
notice to the Adviser, and by the Adviser upon sixty (60) days' written notice
to the Trust. This Agreement shall also terminate in the event of any transfer
or assignment thereof, as defined in the Act.
14. CERTAIN DEFINITIONS. The terms "majority of the outstanding voting
securities" of the Trust or Fund and "interested persons" shall have the
meanings as set forth in the Act. The term "net assets" shall have the meaning
and shall be calculated as set forth in the Trust's Registration Statement from
time to time.
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15. SEVERABILITY. If any provision 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.
16. HEADINGS. The headings used herein are for convenience and ease of
reference only. No legal effect is intended, nor is to be derived from such
headings.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested by their duly authorized officers, all as of the day
and year first above written.
XXXXXXXXX XXXXXXXX INVESTMENT TRUST
/s/ Xxxxx X. Xxxxx
---------------------------------
Treasurer
XXXXXXXXX, XXXXXXXX & COMPANY
INVESTMENT MANAGEMENT, L.P.
By: Bayview Holdings, Inc.,
General Partner
/s/ Xxxxxx X. Xxxxx
---------------------------------
President
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