INVESTMENT ADVISORY AGREEMENT
XXXX XXXXX INVESTMENT TRUST, INC.
AGREEMENT made this 1st day of August, 2000 by and between LMM LLC,
("Manager"), a Maryland limited liability company, and Xxxx Xxxxx Funds
Management, Inc. ("Adviser"), a Maryland corporation, each of which is
registered as an investment adviser under the Investment Advisers Act of 1940.
WHEREAS, the Manager is the investment adviser and manager of Xxxx
Xxxxx Opportunity Trust ("Fund"), a series of Xxxx Xxxxx Investment Trust, Inc.
("Corporation"), a non-diversified open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Manager wishes to retain the Adviser to provide it with
certain investment advisory services in connection with the Manager's management
of the Fund; and
WHEREAS, the Adviser is willing to furnish such services on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed as follows:
1. Appointment. The Manager hereby appoints the Adviser as
investment adviser for the Fund for the period and on the terms set forth in
this Agreement. The Adviser accepts such appointment and agrees to furnish the
services herein set forth for the compensation herein provided.
2. Delivery of Documents. The Manager has furnished the Adviser
with copies properly certified or authenticated of each of the following:
(a) The Corporation's Articles of Incorporation, as filed with
the State Department of Assessments and Taxation of the State of
Maryland and all amendments thereto;
(b) The Corporation's By-Laws and all amendments thereto;
(c) Resolutions of the Corporation's Board of Directors
authorizing the appointment of the Manager as the investment adviser
and manager for the Fund, and approving the Management Agreement
between the Manager and the Corporation with respect to the Fund
("Management Agreement");
(d) The Corporation's Registration Statement on Form N-1A under
the Securities Act of 1933, as amended, and the 1940 Act, as filed with
the Securities and Exchange Commission, including all exhibits thereto,
relating to shares of common stock of the Fund and all amendments
thereto;
(e) The Fund's most recent prospectus(es); and
(f) The Fund's most recent statement(s) of additional
information.
The Manager will furnish the Adviser from time to time with copies of all
amendments of or supplements to the foregoing.
3. Investment Advisory Services. (a) Subject to the supervision of
the Corporation's Board of Directors and the Manager, the Adviser shall
regularly provide the Fund with investment research, advice, management and
supervision and shall furnish a continuous investment program for the Fund's
portfolio of securities consistent with the Fund's investment objective,
policies and limitations as stated in the Fund's current Prospectus and
Statement of Additional Information. The Adviser shall determine from time to
time what securities will be purchased, retained or sold by the Fund, and shall
implement those decisions, all subject to the provisions of the Corporation's
Articles of Incorporation and By-Laws, the 1940 Act, the applicable rules and
regulations of the Securities and Exchange Commission, and other applicable
federal and state law, as well as the investment objective, policies, and
limitations of the Fund. The Adviser shall also perform such other functions of
management and supervision as may be requested by the Manager and agreed to by
the Adviser.
(b) The Adviser is responsible for the supervision, but not the
expense, of the maintenance of all books and records with respect to the
securities transactions of the Fund in accordance with all applicable federal
and state laws and regulations, and will furnish the Board of Directors of the
Corporation with such periodic and special reports as the Board or the Manager
reasonably may request.
(c) The Fund has authorized any entity or person associated with the
Adviser which is a member of a national securities exchange to effect any
transaction on the exchange for the account of the Fund which is permitted by
Section 11(a) of the Securities Exchange Act of 1934 or Rule 11a2-2(T)
thereunder, and the Fund hereby consents to the retention by such person
associated with the Adviser of all permissible compensation for such
transactions, including compensation in accordance with Rule
11a2-2(T)(a)(2)(iv).
(d) The Adviser, at its expense, shall supply the Board of Directors
and officers of the Corporation with all statistical information and reports
reasonably required by them and reasonably available to the Adviser. The Adviser
shall authorize and permit any of its directors, officers and employees, who may
be elected as directors or officers of the Corporation, to serve in the
capacities in which they are elected.
4. Services Not Exclusive. The Adviser's services hereunder are not
deemed to be exclusive, and the Adviser shall be free to render similar services
to others. It is understood that persons employed by the Adviser to assist in
the performance of its duties hereunder might not devote their full time to such
service. Nothing herein contained shall be deemed to limit or restrict the right
of the Adviser or any affiliate of the Adviser to engage in and devote time and
attention to other business or to render services of whatever kind or nature.
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5. Books and Records. In compliance with the requirements of Rule
31a-3 under the 1940 Act, the Adviser hereby agrees that all books and records
which it maintains for the Fund are property of the Fund and further agrees to
surrender promptly to the Fund or its agents any of such records upon the Fund's
request. The Adviser further agrees to preserve for the period prescribed by
Rule 31a-2 under the 1940 Act, any such records required to be maintained by
Rule 31a-1 under the 1940 Act.
6. Expenses. During the term of this Agreement, the Adviser will
pay all expenses incurred by it in connection with its activities under this
Agreement other than the cost of securities (including brokerage commissions, if
any) purchased for the Fund.
7. Compensation. For the services which the Adviser will render to
the Manager and the Fund under this Agreement, the Manager will pay the Adviser
a fee, computed daily and paid monthly, at an annual rate equal to 0.10% of the
average daily net assets of the Fund up to $100 million and at an annual rate
equal to 0.05% of the average daily net assets of the Fund in excess of $100
million. Fees due to the Adviser hereunder shall be paid promptly to the Adviser
by the Manager following its receipt of fees from the Fund. If this Agreement is
terminated as of any date not the last day of a calendar month, a final fee
shall be paid promptly after the date of termination, which fee shall be based
on the percentage of days of the month during which the Agreement was still in
effect.
8. Limitation of Liability. The Adviser assumes no responsibility
under this Agreement other than to render the services called for hereunder, in
good faith, and shall not be responsible for any action of the Board of
Directors of the Corporation in following or declining to follow any advice or
recommendations of the Administrator; provided, that nothing in this Agreement
shall protect the Adviser against any liability to the Manager, the Corporation,
the Fund or its shareholders for a loss resulting from willful misfeasance, bad
faith or gross negligence in the performance of its duties or from reckless
disregard of its obligations or duties under this Agreement.
9. Definitions. As used in this Agreement, the terms "securities"
and "net assets" shall have the meanings ascribed to them in the Articles of
Incorporation of the Corporation; and the terms "assignment," "interested
person," and "majority of the outstanding voting securities" shall have the
meanings given to them by Section 2(a) of the 1940 Act, subject to such
exemptions or modifications as may be granted by the Securities and Exchange
Commission by any rule, regulation or order.
10. Duration and Termination. This Agreement will become effective
August 1, 2000. If not earlier terminated, this Agreement shall continue in
effect for successive annual periods, provided that such continuance is
specifically approved at least annually (i) by the Corporation's Board of
Directors or (ii) by a vote of a majority of the outstanding voting securities
of the Fund, provided that in either event the continuance is also approved by a
majority of the Corporation's Directors who are not interested persons of the
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Fund or of any party to this Agreement, by vote cast in person at a meeting
called for the purpose of voting on such approval. This Agreement is terminable
without penalty, by vote of the Corporation's Board of Directors, by vote of a
majority of the outstanding voting securities of the Fund, or by either party,
on not less than 60 days' notice to the Fund and/or the other party(ies) and
will be terminated immediately upon any termination with respect to the Fund of
the Management Agreement between the Manager and the Fund, or upon the mutual
written consent of the Manager, the Adviser and the Fund. This Agreement will
automatically and immediately terminate in the event of its assignment by the
Adviser and shall not be assignable by the Fund without the consent of the
Adviser.
11. Further Actions. Each party agrees to perform such further acts
and execute such further documents as are necessary to effectuate the purposes
hereof.
12. Amendments. No provision of this Agreement may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought, and 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.
13. Miscellaneous. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings relating to the subject matter hereof. The captions in this
Agreement are included for convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect their constitution or
effect. Should any part of this Agreement be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this 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.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be
executed by their officers thereunto duly authorized.
Attest: LMM LLC
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx, III
Title: Managing Member
Attest: XXXX XXXXX FUNDS MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
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