EXHIBIT 5(b)
XXXXXXX XXXXX TRUST
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
July 15, 1991
Xxxxxxx Sachs Asset Management,
a separate operating division of Xxxxxxx, Xxxxx & Co.
00 Xxx Xxxx
Xxx Xxxx, XX 00000
INVESTMENT ADVISORY AGREEMENT
-----------------------------
GS GLOBAL INCOME FUND
Dear Sirs:
Xxxxxxx Sachs Trust (the "Trust") has been organized as a Massachusetts business
trust under the laws of the Commonwealth of Massachusetts to engage in the
business of an investment company. The units of beneficial interest of the
Trust ("Units") are divided into multiple series ("Series"), including the GS
Global Income Fund (the "Fund"), as established pursuant to a written instrument
executed by the Trustees of the Trust. Each Series will represent the interests
in a separate portfolio of securities and other assets. Series may be
terminated, and additional Series established, from time to time by action of
the Board of Trustees. The Trust on behalf of the Fund has selected you to act
as the investment adviser of the Fund and to provide certain services, as more
fully set forth below, and you are willing to act as such investment adviser and
to perform such services under the terms and conditions hereinafter set forth.
Accordingly, the Trust agrees with you as follows:
1. Name of Trust. The Trust may use any name including or derived from
-------------
the name "Xxxxxxx Xxxxx" in connection with the Fund only for so long as this
Agreement or any extension, renewal or amendment hereof remains in effect,
including any similar agreement with any organization which shall have succeeded
to your business as investment adviser. Upon the termination of this Agreement,
the Trust (to the extent that it lawfully can) will cause the Fund to cease to
use such a name or any other name indicating that it is advised by or otherwise
connected with you or any organization which shall have so succeeded to your
business.
2. Sub-Advisers. You may engage one or more investment advisers which are
------------
either registered as such or specifically exempt from registration under the
Investment Company Act of 1940, as amended, to act as sub-advisers to provide
with respect to the Fund certain services set forth in Paragraphs 3 and 6
hereof, all as shall be set forth in a written contract to which the Trust, on
behalf of the Fund, and you shall be parties, which contract shall be subject to
approval by the vote of a majority of the Trustees who are not interested
persons of you, the sub-adviser, or of the Trust, cast in person at a meeting
called for the purpose of voting on such approval and by the vote of a majority
of the outstanding voting securities of the Fund and otherwise consistent with
the terms of the Investment Company Act of 1940, as amended.
1
3. Advisory Services.
-----------------
(a) You will regularly provide the Fund with investment research, advice
and supervision and will furnish continuously an investment program for
the Fund consistent with the investment objectives and policies of the
Fund. You will determine from time to time what securities shall be
purchased for the Fund, what securities shall be held or sold by the
Fund, and what portion of the Fund's assets shall be held uninvested as
cash, subject always to the provisions of the Trust's Agreement and
Declaration of Trust and By-Laws and of the Investment Company Act of
1940, as amended (the "1940 Act"), and to the investment objectives,
policies and restrictions of the Fund, as each of the same shall be
from time to time in effect, and subject, further, to such policies and
instructions as the Board of Trustees may from time to time establish.
(b) You will maintain all books and records with respect to the Fund's
securities transactions required by sub-paragraphs (b)(5), (6), (9) and
(10) and paragraph (f) of Rule 31a-1 under the 1940 Act (other than
those records being maintained by the Fund's custodian or transfer
agent) and preserve such records for the periods prescribed therefor by
Rule 31a-2 of the 1940 Act. You will also provide to the Trust's Board
of Trustees such periodic and special reports as the Board may
reasonably request. You 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
Trust in any way or otherwise be deemed an agent of the Trust.
(c) You will notify the Trust of any change in your membership within a
reasonable time after such change.
(d) Your services hereunder are not deemed exclusive and you shall be free
to render similar services to others.
4. Allocation of Charges and Expenses. You will pay all costs incurred by
----------------------------------
you in connection with the performance of your duties under paragraph 3. You
will pay the compensation and expenses of all personnel of yours and will make
available, without expense to the Trust, the services of such of your partners,
officers and employees as may duly be elected officers or Trustees of the Trust,
subject to their individual consent to serve and to any limitations imposed by
law. You will not be required to pay any expenses of the Trust other than those
specifically allocated to you in this paragraph 4. In particular, but without
limiting the generality of the foregoing, you will not be required to pay: (i)
fees and expenses of any administrator of the Trust; (ii) organization expenses
of the Trust; (iii) fees and expenses incurred by the Trust in connection with
membership in investment company organizations; (iv) brokers' commissions; (v)
payment for portfolio pricing services to a pricing agent, if any; (vi) legal,
auditing or accounting expenses (including an allocable portion of the cost of
your employees rendering legal and accounting services to the Trust); (vii)
taxes or governmental fees; (viii) the fees and expenses of the transfer agent
of the Trust; (ix) the cost of preparing stock certificates or any other
expenses, including clerical expenses of issue, redemption or repurchase of
Units of the Trust; (x) the expenses of and fees for registering or qualifying
Units for sale and of maintaining the registration of the Trust and registering
the Trust as a broker or a dealer; (xi) the fees and expenses of Trustees of the
Trust who are not affiliated with you; (xii) the cost of preparing and
2
distributing reports and notices to unitholders, the Securities and Exchange
Commission and other regulatory authorities; (xiii) the fees or disbursements of
custodians of the Trust's assets, including expenses incurred in the performance
of any obligations enumerated by the Agreement and Declaration of Trust or By-
Laws of the Trust insofar as they govern agreements with any such custodian; or
(xiv) litigation and indemnification expenses and other extraordinary expenses
not incurred in the ordinary course of the Trust's business. You shall not be
required to pay expenses of activities which are primarily intended to result in
sales of Units of the Fund.
5. Compensation of the Adviser.
---------------------------
(a) For all services to be rendered and payments made as provided in
paragraphs 3 and 4 hereof, the Trust on behalf of the Fund will pay you
on the last day of each month a fee at an annual rate equal to .25% per
annum of the average daily net assets of the Fund. The "average daily
net assets" of the Fund shall be determined on the basis set forth in
the Fund's prospectus or otherwise consistent with the 1940 Act and the
regulations promulgated thereunder.
(b) If, in any fiscal year, the sum of the Fund's expenses (including the
fee payable pursuant to this paragraph 5, but excluding taxes,
interest, brokerage commissions relating to the purchase or sale of
portfolio securities, distribution expenses and extraordinary expenses
such as for litigation) exceeds the expense limitations, if any,
applicable to the Fund imposed by state securities administrators, as
such limitations may be modified from time to time, you shall reimburse
the Fund in the amount of 1/4 of such excess to the extent required by
such expense limitations, provided that the amount of such
reimbursement shall not exceed the amount of your fee during such
fiscal year.
(c) In addition to the foregoing, you may from time to time agree not to
impose all or a portion of your fee otherwise payable hereunder (in
advance of the time such fee or portion thereof would otherwise accrue)
and/or undertake to pay or reimburse the Fund for all or a portion of
its expenses not otherwise required to be borne or reimbursed by you.
Any such fee reduction or undertaking may be discontinued or modified
by you at any time.
6. Avoidance of Inconsistent Position. In connection with purchases or sales
----------------------------------
of portfolio securities for the account of the Fund, neither you nor any of your
partners, officers or employees will act as a principal, except as otherwise
permitted by the 1940 Act. You or your agent shall arrange for the placing of
all orders for the purchase and sale of portfolio securities for the Fund's
account with brokers or dealers (including Xxxxxxx, Sachs & Co.) selected by
you. In the selection of such brokers or dealers (including Xxxxxxx, Xxxxx &
Co.) and the placing of such orders, you are directed at all times to seek for
the Fund the most favorable execution and net price available. It is also
understood that it is desirable for the Fund that you have access to
supplemental investment and market research and security and economic analyses
provided by brokers who may execute brokerage transactions at a higher cost to
the Fund than may result when allocating brokerage to other brokers on the basis
of seeking the most favorable price and efficient execution. Therefore, you are
authorized to place orders for the purchase and sale of securities for the Fund
with such brokers, subject to review by the Trust's Board of Trustees from time
to time with respect to the extent and continuation of this practice. It is
understood that the services provided by such brokers may be useful to you in
connection with your services to other clients. If any occasion should arise in
which you give any advice to your clients concerning the Units of the Fund, you
will act solely as investment counsel for such clients and not in any way on
behalf of the Fund. You may, on occasions
3
when you deem the purchase or sale of a security to be in the best interests of
the Fund as well as your other customers (including any other Series or any
other investment company or advisory account for which you act as an investment
adviser), aggregate, to the extent permitted by applicable laws and regulations,
the securities to be sold or purchased in order to obtain the best net price and
the most favorable execution. In such event, allocation of the securities so
purchased or sold, as well as the expenses incurred in the transaction, will be
made by you in the manner you consider to be the most equitable and consistent
with your fiduciary obligations to the Fund and to such other customers.
7. Limitation of Liability of Adviser. You shall not be liable for any error
----------------------------------
of judgment or mistake of law or for any loss suffered by the Fund in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on your part
in the performance of your duties or from reckless disregard by you of your
obligations and duties under this Agreement. Any person, even though also
employed by you, who may be or become an employee of and paid by the Trust or
the Fund shall be deemed, when acting within the scope of his employment by the
Trust, to be acting in such employment solely for the Trust and not as your
employee or agent.
8. Duration and Termination of this Agreement. This Agreement shall remain in
------------------------------------------
force until June 30, 1992 and shall continue for periods of one year thereafter,
but only so long as such continuance is specifically approved at least annually
(a) by the vote of a majority of the Trustees who are not interested persons (as
defined in the 0000 Xxx) of the Trust and have no financial interest in this
Agreement, cast in person at a meeting called for the purpose of voting on such
approval and (b) by a vote of a majority of the Board of Trustees or of a
majority of the outstanding voting securities of the Fund. The aforesaid
requirement that continuance of this Agreement be "specifically approved at
least annually" shall be construed in a manner consistent with the 1940 Act and
the rules and regulations thereunder. This Agreement may, on 60 days' written
notice to the other party, be terminated at any time without the payment of any
penalty, by the Board of Trustees of the Trust, by vote of a majority of the
outstanding voting securities of the Fund, or by you. This Agreement shall
automatically terminate in the event of its assignment. In interpreting the
provisions of this Agreement, the definitions contained in Section 2(a) of the
1940 Act (particularly the definitions of "interested person," "assignment" and
"majority of the outstanding voting securities"), as from time to time amended,
shall be applied, subject, however, to such exemptions as may be granted by the
Securities and Exchange Commission by any rule, regulation or order.
9. Amendment of this Agreement. No provisions 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. No amendment of this Agreement shall be
effective until approved by vote of the holders of a majority of the outstanding
voting securities of the Fund and by a majority of the Board of Trustees,
including a majority of the Trustees who are not interested persons (as defined
in the 0000 Xxx) of the Trust and have no financial interest in this Agreement,
cast in person at a meeting called for the purpose of voting on such amendment.
4
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
11. Miscellaneous. 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 construction or effect. This Agreement may be
executed simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
The name Xxxxxxx Xxxxx Trust is the designation of the Trustees for the
time being under an Agreement and Declaration of Trust dated September 24, 1987,
as amended from time to time, and all persons dealing with the Trust or the Fund
must look solely to the property of the Trust or the Fund for the enforcement of
any claims against the Trust as neither the Trustees, officers, agents or
unitholders assume any personal liability for obligations entered into on behalf
of the Trust. The Fund shall not be liable for any claims against any other
series of the Trust.
If you are in agreement with the foregoing, please sign the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Trust, whereupon this letter shall become a binding contract.
Yours very truly,
XXXXXXX SACHS TRUST
(ON BEHALF OF GS GLOBAL INCOME FUND)
Attest: Xxxxxxxx X. Xxxxxxxxx By: Xxxxxxx Xxxxx Xxxxx
--------------------------------- -------------------------------
Xxxxxxxx X. Xxxxxxxxx Xxxxxxx Xxxxx Xxxxx
Secretary of the Trust President of the Trust
The foregoing Agreement is hereby accepted as of the date thereof.
XXXXXXX SACHS ASSET MANAGEMENT
A SEPARATE OPERATING DIVISION OF XXXXXXX, XXXXX & CO.
Attest: Xxxxxxxx X. Xxxxxxxxx By: Xxxx X. Xxxxx
--------------------------------- ----------------------------
Xxxxxxxx X. Xxxxxxxxx Xxxx X. Xxxxx
Counsel to the Funds Group Partner
5
