Exhibit (d)(12)
XXXXXX XXXXXX HIGH INCOME OPPORTUNITIES FUND
Advisory Agreement
AGREEMENT made the 1st day of April 2004, by and between XXXXXX XXXXXX
FUNDS I, a Massachusetts business trust (the "Fund"), with respect to its Xxxxxx
Xxxxxx High Income Opportunities Fund series (the "Series"), and XXXXXX, XXXXXX
& COMPANY, L.P., a Delaware limited partnership (the "Manager").
WITNESSETH:
WHEREAS, the Fund and the Manager wish to enter into an agreement setting
forth the terms upon which the Manager (or certain other parties acting pursuant
to delegation from the Manager) will perform certain services for the Series and
bear the expenses of the Series;
NOW, THEREFORE, in consideration of the premises and covenants hereinafter
contained, the parties agree as follows:
1. (a) The Fund hereby employs the Manager to furnish the Fund with
Portfolio Management Services (as defined in Section 2 hereof), subject to the
authority of the Manager to delegate any or all of its responsibilities
hereunder to other parties as provided in Section 1(b) hereof. The Manager
hereby accepts such employment and agrees, at its own expense, to furnish such
services (either directly or pursuant to delegation to other parties as
permitted by Section 1(b) hereof) and to assume the obligations herein set
forth. The Manager shall, unless 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.
(b) The Manager may delegate any or all of its responsibilities
hereunder with respect to the provision of Portfolio Management Services
(and assumption of related expenses) to one or more other parties (each
such party, a "Sub-Adviser"), pursuant in each case to a written agreement
with such Sub-Adviser that meets the requirements of Section 15 of the
Investment Company Act of 1940 and the rules thereunder (the "1940 Act")
applicable to contracts for service as investment adviser of a registered
investment company (including without limitation the requirements for
approval by the trustees of the Fund and the shareholders of the Series),
subject, however, to such exemptions as may be granted by the Securities
and Exchange Commission. Any Sub-Adviser may (but need not) be affiliated
with the Manager. If different Sub-Advisers are engaged to provide
Portfolio Management Services with respect to different segments of the
portfolio of the Series, the Manager shall determine, in the manner
described in the prospectus of the Series from time to time in effect, what
portion of the assets belonging to the Series shall be managed by each
Sub-Adviser.
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2. As used in this Agreement, "Portfolio Management Services" means
management of the investment and reinvestment of the assets belonging to the
Series, consisting specifically of the following:
(a) obtaining and evaluating such economic, statistical and financial
data and information and undertaking such additional investment research as
shall be necessary or advisable for the management of the investment and
reinvestment of the assets belonging to the Series in accordance with the
Series' investment objectives and policies;
(b) taking such steps as are necessary to implement the investment
policies of the Series by purchasing and selling of securities, including
the placing of orders for such purchase and sale; and
(c) regularly reporting to the Board of Trustees of the Fund with
respect to the implementation of the investment policies of the Series.
3. [RESERVED]
4. The Manager also agrees that it or one of its affiliates, and not the
Fund or the Series, shall bear the following expenses of the Series, whether
incurred directly by the Series or incurred by the Fund on behalf of the Series:
(a) any of the costs of printing and mailing the items referred to in
sub-section (k) of this section 4;
(b) any of the costs of preparing, printing and distributing sales
literature;
(c) compensation of trustees of the Fund who are not directors,
officers or employees of the Manager, any Sub-Adviser or any administrator
or of any affiliated person (other than a registered investment company) of
the Manager, any Sub-Adviser or any administrator;
(d) registration, filing and other fees in connection with
requirements of regulatory authorities;
(e) the charges and expenses of any entity appointed by the Fund for
custodial, paying agent, shareholder servicing and plan agent services;
(f) charges and expenses of independent accountants retained by the
Fund;
(g) charges and expenses of any transfer agents and registrars
appointed by the Fund;
(h) any cost of certificates representing shares of the Fund;
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(i) legal fees and expenses in connection with the day-to-day affairs
of the Fund, including registering and qualifying its shares with Federal
and State regulatory authorities;
(j) expenses of meetings of shareholders and trustees of the Fund;
(k) the costs of services, including services of counsel, required in
connection with the preparation of the Fund's registration statements and
prospectuses, including amendments and revisions thereto, annual,
semiannual and other periodic reports of the Fund, and notices and proxy
solicitation material furnished to shareholders of the Fund or regulatory
authorities; and
(l) the Fund's expenses of bookkeeping, accounting, auditing and
financial reporting, including related clerical expenses.
5. Nothing in this Agreement shall require the Manager or any of its
affiliates to bear or to reimburse the Series or the Fund for:
(a) taxes payable by the Fund to federal, state or other governmental
agencies;
(b) extraordinary expenses as may arise, including expenses incurred
in connection with litigation, proceedings, other claims and the legal
obligations of the Fund or the Series to indemnify its trustees, officers,
employees, shareholders, distributors, and agents with respect thereto;
(c) brokerage fees and commissions (including dealer markups) and
transfer taxes chargeable to the Fund in connection with the purchase and
sale of portfolio securities for the Series;
(d) costs, including any interest expenses, of borrowing money;
(e) costs of hedging transactions;
(f) costs of lending portfolio securities; and
(g) any expenses indirectly incurred through investments in other
pooled investment vehicles.
6. All activities undertaken by the Manager or any Sub-Adviser pursuant to
this Agreement shall at all times be subject to the supervision and control of
the Board of Trustees of the Fund, any duly constituted committee thereof or any
officer of the Fund acting pursuant to like authority.
7. The services to be provided by the Manager and any Sub-Adviser hereunder
are not to be deemed exclusive and the Manager and any Sub-Adviser shall be free
to render similar services to others, so long as its services hereunder are not
impaired thereby.
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8. The Manager shall receive no investment advisory or other fee from the
Fund for the services provided under this Agreement.
9. It is understood that any of the shareholders, trustees, officers,
employees and agents of the Fund may be a shareholder, director, officer,
employee or agent of, or be otherwise interested in, the Manager, any affiliated
person of the Manager, any organization in which the Manager may have an
interest or any organization which may have an interest in the Manager; that the
Manager, any such affiliated person or any such organization may have an
interest in the Fund; and that the existence of any such dual interest shall not
affect the validity hereof or of any transactions hereunder except as otherwise
provided in the Agreement and Declaration of Trust of the Fund, the partnership
agreement of the Manager or specific provisions of applicable law.
10. This Agreement shall become effective as of the date of its execution,
and
(a) unless otherwise terminated, this Agreement shall continue in
effect for two years from the date of execution, and from year to year
thereafter so long as such continuance 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 Series, and (ii) by vote of a
majority of the trustees of the Fund who are not interested persons of the
Fund or the Manager, cast in person at a meeting called for the purpose of
voting on, such approval;
(b) this Agreement may at any time be terminated on sixty days'
written notice to the Manager either by vote of the Board of Trustees of
the Fund or by vote of a majority of the outstanding voting securities of
the Series;
(c) this Agreement shall automatically terminate in the event of its
assignment;
(d) this Agreement may be terminated by the Manager on ninety days'
written notice to the Fund;
Termination of this Agreement pursuant to this Section 9 shall be without
the payment of any penalty.
11. This Agreement may be amended at any time by mutual consent of the
parties, provided that any material amendment of this Agreement shall require
the approval by vote of a majority of the outstanding voting securities of the
Series and by vote of a majority of the trustees of the Fund who are not
interested persons of the Fund or the Manager, cast in person at a meeting
called for the purpose of voting on such approval.
12. For the purpose of this Agreement, the terms "vote of a majority of the
outstanding voting securities," "interested person," "affiliated person" and
"assignment" shall have their respective meanings defined in the 1940 Act,
subject, however, to such
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exemptions as may be granted by the Securities and Exchange Commission under the
1940 Act. References in this Agreement to any assets, property or liabilities
"belonging to" the Series shall have the meaning defined in the Fund's Agreement
and Declaration of Trust as amended from time to time.
13. In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Fund, to any
shareholder of the Fund or to any other person, firm or organization, for any
act or omission in the course of, or connected with, rendering services
hereunder.
14. In accordance with Regulation S-P, if non-public personal information
regarding either party's customers or consumers is disclosed to the other party
in connection with this Agreement, the party receiving such information will not
disclose or use that information other than as necessary to carry out the
purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
XXXXXX XXXXXX FUNDS I
on behalf of its Xxxxxx Xxxxxx High Income Opportunities Fund series
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Executive Vice President
XXXXXX, XXXXXX & COMPANY, L.P.
By: Xxxxxx, Xxxxxx & Company, Inc., its general partner
By: /s/ XXXXX CHARLESTON
------------------------------------
Name: Xxxxx Charleston
Title: Director
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NOTICE
A copy of the Agreement and Declaration of Trust establishing the Fund is on
file with the Secretary of The Commonwealth of Massachusetts, and notice is
hereby given that this Agreement is executed with respect to the Series on
behalf of the Fund by officers of the Fund as officers and not individually and
that the obligations of or arising out of this Agreement are not binding upon
any of the trustees, officers or shareholders individually but are binding only
upon the assets and property belonging to the Series.
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