EXHIBIT 99.5
XXXXX XXXXX INCOME FUND OF BOSTON
INVESTMENT ADVISORY AGREEMENT
AGREEMENT originally made on the 22nd day of May, 1989, by and between
Xxxxx Xxxxx Income Fund of Boston, a Massachusetts business trust (hereinafter
sometimes called the "Fund"), and Xxxxx Xxxxx Management, Inc., a Massachusetts
corporation, and re-executed this 1st day of November, 1990, by and between the
Fund and Xxxxx Xxxxx Management, a Massachusetts business trust (hereinafter
sometimes called the "Adviser") which is the successor to Xxxxx Xxxxx
Management, Inc. in a transaction qualifying under Rule 2a-6 under the
Investment Company Act of 1940.
1. Duties of the Adviser. The Fund hereby employs the Adviser to act as
investment adviser for and to manage the investment and reinvestment of the
assets of the Fund and to administer its affairs, subject to the supervision of
the Board of Trustees of the Fund, for the period and on the terms set forth in
this Agreement.
The Adviser hereby accepts such employment, and undertakes to afford to
the Fund the advice and assistance of the Adviser's organization in the choice
of investments and in the purchase and sale of securities for the Fund's
portfolio and to furnish for the use of the Fund office space and all necessary
office facilities, equipment and personnel for servicing the investments of the
Fund. The Adviser shall pay the salaries and fees of all officers and Trustees
of the Fund who are members of the Adviser's organization and all personnel of
the Adviser performing services relating to research and investment activities.
The Adviser shall for all purposes herein be deemed to be an independent
contractor and shall, except as otherwise expressly provided or authorized, have
no authority to act for or represent the Fund in any way or otherwise be deemed
an agent of the Fund.
The Adviser shall provide the Fund with such investment management and
supervision as the Fund may from time to time consider necessary for the proper
supervision of its portfolio. As investment adviser to the Fund, the Adviser
shall furnish continuously an investment program and shall determine from time
to time what securities shall be purchased, sold or exchanged and what portion
of the Fund's assets shall be held uninvested, subject always to the applicable
restrictions of the Declaration of Trust, By-Laws and registration statement of
the Fund under the Investment Company Act of 1940, all as from time to time
amended. The Adviser is authorized, in its discretion and without prior
consultation with the Trust, to buy, sell, lend and otherwise trade in any and
all types of securities, commodities and investment instruments on behalf of the
Fund. Should the Trustees of the Fund at any time, however, make any specific
determination as to investment policy and notify the Adviser thereof in writing,
the Adviser shall be bound by such determination for the period, if any,
specified in such notice or until similarly notified that such determination has
been revoked. The Adviser shall take, on behalf of the Fund, all actions which
it deems necessary or desirable to implement the investment policies of the
Fund.
The Adviser shall place all orders for the purchase or sale of
portfolio securities for the Fund's account with brokers or dealers or other
persons selected by the Adviser, and to that end the Adviser is authorized as
the agent of the Fund to give instructions to the custodian of the Fund as to
deliveries of securities and payments of cash for the account of the Fund. In
connection with the selection of such brokers or dealers or dealers or other
persons and the placing of such orders, the Adviser shall use its best efforts
to seek to execute security transactions at prices which are advantageous to the
Fund and at reasonably competitive spreads or (when a disclosed commission is
being charged) at reasonably competitive commission rates. In selecting brokers
or dealers qualified to execute a particular transaction, brokers or dealers may
be selected who also provide brokerage and research services (as those terms are
defined in Section 28(e) of the Securities Exchange Act of 1934) to the Adviser
and the Adviser is expressly authorized to pay any broker or dealer who provides
such brokerage and research services a commission for executing a security
transaction which is in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction if the Adviser
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage and research services provided by such
broker or dealer, viewed in terms of either that particular transaction or the
overall responsibilities which the Adviser and its affiliates have with respect
to accounts over which they exercise investment discretion. Subject to the
requirement set forth in the second sentence of this paragraph, the Adviser is
authorized to consider, as a factor in the selection of any broker or dealer
with whom purchase or sale orders may be placed, the fact that such broker or
dealer has sold or is selling shares of the Fund or of other investment
companies sponsored by the Adviser.
2. Compensation of the Adviser. For the services, payments and
facilities to be furnished hereunder by the Adviser, the Fund shall pay to the
Adviser on the last day of such month a monthly fee of 5/96 of 1% (equivalent to
5/8 of 1% annually) of the average daily net assets of the Fund throughout the
month, computed in accordance with the Declaration of Trust of the Fund and any
applicable votes of the Trustees of the Fund. In case of initiation or
termination of the Agreement during any month, the fee for that month shall be
reduced proportionately on the basis of the number of calendar days during which
it is in effect and the fee shall be computed upon the basis of the average of
valuations made throughout such period.
The Adviser may, from time to time, waive all or a part of the above
compensation.
3. Allocation of Charges and Expenses. It is understood that the Fund
will pay all its expenses other than those expressly stated to be payable by the
Adviser hereunder, which expenses payable by the Fund shall include, without
implied limitation, (i) expenses of organizing and maintaining the Fund and
continuing its existence, (ii) registration of the Fund under the Investment
Company Act of 1940, (iii) commissions, spreads, fees and other expenses
connected with the purchase or sale of securities, (iv) auditing, accounting and
legal expenses, (v) taxes and interest, (vi) governmental fees, (vii) expenses
of issue, sale, repurchase and redemption of shares, (viii) expenses of
registering and qualifying the Fund and its shares under federal and state
securities laws and of preparing and printing prospectuses for such purposes and
for distributing the same to shareholders and investors, and fees and expenses
of registering and maintaining registrations of the Fund and of the Fund's
principal underwriter, if any, as broker-dealer or agent under state securities
laws, (ix) expenses of reports and notices to shareholders and of meetings of
shareholders and proxy solicitations therefor, (x) expenses of reports to
governmental officers and commissions, (xi) insurance expenses, (xii)
association membership dues, (xiii) fees, expenses and disbursements of
custodians and subcustodians for all services to the Fund (including without
limitation safekeeping of funds and securities, keeping of books and accounts
and determination of net asset values), (xiv) fees, expenses and disbursements
of transfer agents, dividend disbursing agents, shareholder servicing agents and
registrars for all services to the Fund, (xv) expenses for servicing shareholder
accounts, (xvi) any direct charges to shareholders approved by the Trustees of
the Fund, (xvii) compensation and expenses of Trustees of the Fund who are not
members of the Adviser's organization, (xviii) all payments to be made and
expenses to be assumed by the Trust pursuant to any one or more distribution
plans adopted by the Trust pursuant to Rule 12b-1 under the Investment Company
Act of 1940, and (xix) such non-recurring items as may arise, including expenses
incurred in connection with litigation, proceedings and claims and the
obligation of the Fund to indemnify its Trustees and officers with respect
thereto.
4. Other Interests. It is understood that Trustees, officers and
shareholders of the Fund are or may be or become interested in the Adviser as
trustees, officers, employees, shareholders or otherwise and that trustees,
officers employees and shareholders of the Adviser are or may be or become
similarly interested in the Fund, and that the Adviser may be or become
interested in the Fund as shareholder or otherwise. It is also understood that
trustees, officers, employees and shareholders of the Adviser may be or become
interested (as directors, trustees, officers, employees, stockholders or
otherwise) in other companies or entities (including, without limitation, other
investment companies) which the Adviser may organize, sponsor or acquire, or
with which it may merge or consolidate, and which may include the words "Xxxxx
Xxxxx" or any combination thereof as part of their name, and that the Adviser or
its subsidiaries or affiliates may enter into advisory or management agreements
or other contracts or relationships with such other companies or entities.
5. Limitation of Liability of the Adviser. The services of the Adviser
to the Fund are not to be deemed to be exclusive, the Adviser being free to
render services to others and engage in other business activities. 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 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 which may be sustained in the purchase,
holding or sale of any security.
6. Sub-Investment Advisers. The Adviser may employ one or more
sub-investment advisers from time to time to perform such of the acts and
services of the Adviser, including the selection of brokers or dealers or other
persons to execute the Fund's portfolio security transactions, and upon such
terms and conditions as may be agreed upon between the Adviser and such
sub-investment adviser and approved by the Trustees of the Fund.
7. Duration and Termination of this Agreement. This Agreement shall
become effective upon the date of its execution, and, unless terminated as
herein provided, shall remain in full force and effect to and including February
28, 1991* and shall continue in full force and effect indefinitely thereafter,
but only so long as such continuance after February 28, 1991* is specifically
approved at least annually (i) by the Board of Trustees of the Fund or by vote
of a majority of the outstanding voting securities of the Fund and (ii) by the
vote of a majority of those Trustees of the Fund who are not interested persons
of the Adviser or the Fund cast in person at a meeting called for the purpose of
voting on such approval.
Either party hereto may, at any time on sixty (60) days' prior written
notice to the other, terminate this Agreement without the payment of any
penalty, by action of Trustees of the Fund or the trustees of the Adviser, as
the case may be, and the Fund may, at any time upon such written notice to the
Adviser, terminate this Agreement by vote of a majority of the outstanding
voting securities of the Fund. This Agreement shall terminate automatically in
the event of its assignment.
8. Amendments of the Agreement. This Agreement may be amended by a
writing signed by both parties hereto, provided that no amendment to this
Agreement shall be effective until approved (i) by the vote of a majority of
those Trustees of the Fund who are not interested persons of the Adviser or the
Fund cast in person at a meeting called for the purpose of voting on such
approval, and (ii) by vote of a majority of the outstanding voting securities of
the Fund.
9. Limitation of Liability. The Adviser expressly acknowledges the
provision in the Declaration of Trust of the Fund (Article XIV, Section 2)
limiting the personal liability of shareholders of the Fund, and the Adviser
hereby agrees that it shall have recourse to the Fund for payment of claims or
obligations as between the Fund and Adviser arising out of this Agreement and
shall not seek satisfaction from the shareholders or any shareholder of the
Fund.
10. Use of the Name "Xxxxx Xxxxx". The Adviser hereby consents to the
use by the Fund of the name "Xxxxx Xxxxx" as part of the Fund's name; provided,
however, that such consent shall be conditioned upon the employment of the
Adviser or one of its affiliates as the investment adviser of the Fund. The name
"Xxxxx Xxxxx" or any variation thereof may be used from time to time in other
connections and for other purposes by the Adviser and its affiliates and other
investment companies that have obtained consent to use the name "Xxxxx Xxxxx".
The Adviser shall have the right to require the Fund to cease using the name
"Xxxxx Xxxxx" as part of the Fund's name if the Fund ceases, for any reason, to
employ the Adviser or one of its affiliates as the Fund's investment adviser.
Future names adopted by the Fund for itself, insofar as such names include
identifying words requiring the consent of the Adviser, shall be the property of
the Adviser and shall be subject to the same terms and conditions.
11. Certain Definitions. The terms "vote of a majority of the
outstanding voting securities", "assignment", and "interested persons", when
used herein, shall have the respective meanings specified in the Investment
Company Act of 1940 as now in effect or as hereafter amended subject, however,
to such exemptions as may be granted by the Securities and Exchange Commission
by any rule, regulation or order.
12. This Agreement, originally executed on May 22, 1989, has been
re-executed by the Adviser and the Fund on November 1, 1990.
XXXXX XXXXX INCOME FUND OF BOSTON XXXXX XXXXX MANAGEMENT
By/s/ X. Xxxxxx Xxxxxxx By/s/ Xxxxxx X. Xxxxx
------------------------- --------------------------
Vice President,
and not individually
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*As most recently continued in effect by vote of the Board of Trustees of the
Fund and by vote of a majority of those Trustees of the Fund who are not
interested persons of Xxxxx Xxxxx Management, Inc. (the Adviser's predecessor)
and the Fund.
