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EX-99. 5 (a)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 10th day of June, 1985, by and between
XXXXXXX XXXXX NATURAL RESOURCES TRUST, a Massachusetts business
trust (hereinafter referred to as the "Trust"), and XXXXXXX XXXXX
ASSET MANAGEMENT, INC., a Delaware corporation (hereinafter
referred to as the "Investment Adviser").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as An open-end
investment company registered under the Investment Company Act of
1940, as amended (hereinafter referred to as the "Investment
Company Act"); and
WHEREAS, the Investment Adviser is engaged principally in
rendering investment advisory and management services and is
registered as an investment adviser under the Investment Advisers
Act of 1940; and
WHEREAS, the Trust desires to retain the Investment Adviser
to provide certain investment advisory and management services to
the Trust in the manner and on the terms hereinafter set forth;
and
WHEREAS, the Investment Adviser is willing to provide such
investment advisory and management services to the Trust on the
terms and conditions hereinafter set forth;
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NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, the Trust and the Investment
Adviser hereby agree as follows:
ARTICLE I
Duties of the Investment Adviser
The Trust hereby employs the Investment Adviser to act as an
investment adviser and manager of the Trust and to furnish, or
arrange for affiliates to furnish, the management and investment
advisory services described below, subject to the policies of,
review by and overall control of the Board of Trustees of the
Trust, for the period and on the terms and conditions set forth in
this Agreement. The Investment Adviser hereby accepts such
employment and agrees during such period, at its own expense, to
render, or arrange for the rendering of, such services and to
assume the obligations herein set forth for the compensation
provided for herein. The Investment Adviser and its affiliates
shall for all purposes herein be deemed to be an independent
contractor and shall, unless 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.
(a) Management Services. The Investment Adviser shall
perform (or arrange for the performance by affiliates of) the
management and administrative services necessary for the operation
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of the Trust including administering shareholder accounts and
handling shareholder relations. The Investment Adviser shall
provide the Trust with office space, equipment and facilities and
such other services as the Investment Adviser, subject to review
by the Board of Trustees of the Trust, shall from time to time
determine to be necessary or useful to perform its obligations
under this Agreement. The Investment Adviser shall also, on
behalf of the Trust, conduct relations with custodians,
depositories, transfer agents, dividend disbursing agents, other
shareholder servicing agents, accountants, attorneys, underwrit-
ers, brokers and dealers, corporate fiduciaries, insurers, banks
and such other persons in any such other capacity deemed to be
necessary or desirable. The Investment Adviser shall generally
monitor the Trust's compliance with investment policies and
restrictions as set forth in the currently effective prospectus
and statement of additional information relating to the shares of
the Trust under the Securities Act of 1933, as amended (the
"Prospectus" and "Statement of Additional Information",
respectively). The Investment Adviser shall make reports to the
Board of Trustees of the Trust of its performance of obligations
hereunder and furnish advice and recommendations with respect to
such other aspects of the business and affairs of the Trust as it
shall determine to be desirable.
(b) Investment Advisory Services. The Investment Adviser
shall provide the Trust with such investment research, advice and
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supervision as the latter may from time to time consider necessary
for the proper supervision of the assets of the Trust, shall
furnish continuously an investment program for the Trust and shall
determine from time to time which securities shall be purchased,
sold or exchanged and what portion of the assets of the Trust
shall be held in the various securities in which the Trust invests
or cash, and shall make decisions for the Trust as to the sale of
options on the Trust's portfolio securities, subject always to the
restrictions of the Declaration of Trust and By-Laws of the Trust,
as amended from time to time, the provisions of the Investment
Company Act and the statements relating to the Trust's investment
objectives, investment policies and investment restrictions as the
same are set forth in the Prospectus and Statement of Additional
Information. The Investment Adviser shall make decisions for the
Trust as to the manner in which voting rights, rights to consent
to corporate action and any other rights pertaining to the Trust's
portfolio securities shall be exercised. Should the Board of
Trustees of the Trust at any time, however, make any definite
determination as to investment policy and notify the Investment
Adviser thereof in writing, the Investment 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 Investment Adviser shall take, on behalf of the
Trust, all actions which it deems necessary to implement the
investment policies determined as provided above, and in
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particular to place all orders for the purchase or sale of
portfolio securities for the Trust's account with brokers or
dealers selected by it, and to that end, the Investment Adviser is
authorized as the agent of the Trust to give instructions to the
Custodian of the Trust as to deliveries of securities and payments
of cash for the account of the Trust. In connection with the
selection of such brokers or dealers and the placing of such
orders, the Investment Adviser is directed at all times to seek to
obtain execution and price within the policy guidelines determined
by the Board of Trustees of the Trust as set forth in the
Prospectus and Statement of Additional Information. Subject to
this requirement and the provisions of the Investment Company Act,
the Securities Exchange Act of 1934, as amended, and other
applicable provisions of law, the Investment Adviser may select
brokers or dealers with which it or the Trust is affiliated.
ARTICLE II
Allocation of Charges and Expenses
(a) The Investment Adviser. The Investment Adviser assumes
and shall pay for maintaining the staff and personnel necessary to
perform its obligations under this Agreement, and shall, at its
own expense, provide the office space, equipment and facilities
which it is obligated to provide under Article I hereof, and shall
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pay all compensation of officers of the Trust and all Trustees of
the Trust who are affiliated persons of the Investment Adviser.
(b) The Trust. The Trust assumes and shall pay or cause to
be paid all other expenses of the Trust (except for the expenses
paid by the Trust's underwriters), including, without limitation:
taxes, expenses for legal and auditing services, costs of printing
proxies, share certificates (if any), shareholder reports,
prospectuses and statements of additional information, charges of
the Custodian, any Sub-Custodian and Transfer Agent, expenses of
redemption of shares, Securities and Exchange Commission fees,
expenses of registering the shares under Federal, state and
foreign laws, fees and actual out-of-pocket expenses of Trustees
who are not affiliated persons of the Investment Adviser,
accounting and pricing costs (including the daily calculation of
the net asset value), insurance, interest, brokerage costs,
litigation and other extraordinary or non-recurring expenses, and
other expenses properly payable by the Trust. It is also under-
stood that the Trust will reimburse the Investment Adviser for its
costs in providing accounting services to the Trust.
ARTICLE III
Compensation of the Investment Adviser
(a) Investment Advisory Fee. For the services rendered, the
facilities furnished and expenses assumed by the Investment
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Adviser, the Trust shall pay to the Investment Adviser at the end
of each calendar month a fee based upon the average daily value of
the net assets of the Trust, as determined and computed in
accordance with the description of the determination of net asset
value contained in the Prospectus and Statement of Additional
Information, at the annual rate of .60 of 1% (.60%) of the average
daily net assets of the Trust, commencing on the day following
effectiveness hereof. During any period when the determination of
net asset value is suspended by the Board of Trustees of the
Trust, the net asset value of a share as of the last business day
prior to such suspension shall for this purpose be deemed to be
the net asset value at the close of each succeeding business day
until it is again determined.
(b) Expense Limitations. In the event the operating
expenses of the Trust, including amounts payable to the Investment
Adviser pursuant to subsection (a) hereof, for any fiscal year
ending on a date on which this Agreement is in effect exceed the
expense limitations applicable to the Trust imposed by applicable
state securities laws or regulations thereunder, as such
limitations may be raised or lowered from time to time, the
Investment Adviser shall reduce its fee by the extent of such
excess and, if required pursuant to any such laws or regulations,
will reimburse the Trust in the amount of such excess; provided,
however, to the extent permitted by law, there shall be excluded
from such expenses the amount of any interest, taxes, brokerage
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commissions, distribution fees and extraordinary expenses
(including but not limited to legal claims and liabilities and
litigation costs and any indemnification related thereto) paid or
payable by the Trust. Whenever the expenses of the Trust exceed a
pro rata portion of the applicable annual expense limitations, the
estimated amount of reimbursement under such limitations shall be
applicable as an offset against the monthly payment of the fee due
to the Investment Adviser. Should two or more such expense
limitations be applicable as at the end of the last business day
of the month, that expense limitation which results in the largest
reduction in the Investment Adviser's fee shall be applicable.
ARTICLE IV
Limitation of Liability of the Investment Adviser
The Investment Adviser shall not be liable for any error of
judgment or mistake of law or for any loss arising out of any
investment or for any act or omission in the management of the
Trust, except for willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of
reckless disregard of its obligations and duties hereunder. As
used in this Article IV, the term "Investment Adviser" shall
include any affiliates of the Investment Adviser performing
services for the Trust contemplated hereby and directors, officers
and employees of the Investment Adviser and such affiliates.
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ARTICLE V
Activities of the Investment Adviser
The services of the Investment Adviser to the Trust are not
to be deemed to be exclusive, the Investment Adviser and any
person controlled by or under common control with the Investment
Adviser (for purposes of this Article V referred to as
"affiliates") being free to render services to others. It is
understood that directors, officers, employees and shareholders of
the Trust are or may become interested in the Investment Adviser
and its affiliates, as directors, officers, employees, partners,
and shareholders or otherwise and that directors, officers,
employees, partners, and shareholders of the Investment Adviser
and its affiliates are or may become similarly interested in the
Trust, and that the Investment Adviser and directors, officers,
employees, partners, and shareholders of its affiliates may become
interested in the Trust as shareholder or otherwise.
ARTICLE VI
Duration and Termination of This Agreement
This Agreement shall become effective as of the date first
above written and shall remain in force until April 30, 1987 and
thereafter, but only so long as such continuance is specifically
approved at least annually by (i) the Board of Trustees of the
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Trust, or by the vote of a majority of the outstanding voting
securities of the Trust, and (ii) a majority of those Trustees who
are not parties to this Agreement or interested persons of any
such party cast in person at a meeting called for the purpose of
voting on such approval.
This Agreement may be terminated at any time, without the
payment of any penalty, by the Board of Trustees of the Trust or
by vote of a majority of the outstanding voting securities of the
Trust, or by the Investment Adviser, on sixty days' written notice
to the other party. This Agreement shall automatically terminate
in the event of its assignment.
ARTICLE VII
Amendments of this Agreement
This Agreement may be amended by the parties only if such
amendment is specifically approved by (i) the vote of a majority
of outstanding voting securities of the Trust, and (ii) a majority
of those Trustees who are not parties to this Agreement or
interested persons of any such party cast in person at a meeting
called for the purpose of voting on such approval.
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ARTICLE VIII
Definitions of Certain Terms
The terms "vote of a majority of the outstanding voting
securities", assignment, "affiliated person" and "interested
person", when used in this Agreement, shall have the respective
meanings specified in the Investment Company Act of 1940 and the
Rules and Regulations thereunder, subject, however, to such
exemptions as may be granted by the Securities and Exchange
Commission under said Act.
ARTICLE IX
Governing Law
This Agreement shall be construed in accordance with laws of
the State of New York and the applicable provisions of the
Investment Company Act. To the extent that the applicable laws of
the State of New York, or any of the provisions herein, conflict
with the applicable provisions of the Investment Company Act, the
latter shall control.
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ARTICLE X
Personal Liability
The Declaration of Trust establishing Xxxxxxx Xxxxx Natural
Resources Trust, dated April 12, 1985, a copy of which, together
with all amendments thereto (the "Declaration"), is on file in the
office of the Secretary of the Commonwealth of Massachusetts,
provides that the name "Xxxxxxx Xxxxx Natural Resources Trust"
refers to the trustees under the Declaration collectively as
trustees, but not as individuals or personally; and no trustee,
shareholder, officer, employee or agent of the Trust shall be held
to any personal liability, nor shall resort be had to their
private property for the satisfaction of any obligation or claim
or otherwise in connection with the affairs of the Trust, but the
"Trust Property" only shall be liable.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
XXXXXXX XXXXX NATURAL RESOURCES TRUST
By /s/ Xxxxx X. Xxxxx
XXXXXXX XXXXX ASSET MANAGEMENT, INC.
By /s/ Xxxxxx Xxxxxx
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