INVESTMENT ADVISORY AGREEMENT
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XXXXX, XXXX & XXXXX FUNDS TRUST
ON BEHALF OF
WPG TAX FREE MONEY MARKET FUND
AGREEMENT made as of the 1st day of May, 1993, by and between XXXXX, XXXX &
XXXXX FUNDS TRUST, a Massachusetts business trust (the "Trust"), for the benefit
of WPG TAX FREE MONEY MARKET FUND, a series of the Trust (the "Fund"), and
XXXXX, XXXX & XXXXX, a New York limited partnership (the "Investment Adviser" or
"WPG").
The Trust is an open-end, management investment company, registered under
the Investment Company Act of 1940, as amended (the "1940 Act"). The Investment
Adviser is an investment adviser registered under the Investment Advisers Act of
1940, as amended and is a broker-dealer registered under the Securities Exchange
Act of 1934, as amended.
The Trust desires the Investment Adviser to render services to the Fund,
and the Investment Adviser is willing to render such services upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
1. INVESTMENT ADVISER. The Trust will, and hereby does, retain the
Investment Adviser to act as the investment adviser of the Fund and to
provide certain services, as more fully set forth below, and the
Investment Adviser hereby accepts such retainer.
2. SUB-ADVISERS. The Investment Adviser may engage one or more investment
advisers which are either registered as such or specifically exempt
from registration under the Investment Advisers Act of 1940, as
amended, to act as sub- advisers to provide with respect to the Fund
certain services set forth in Section 4 of this Agreement, all as
shall be set forth in a written contract to which the Trust, on behalf
of the Fund, and the Investment Adviser shall be parties, which
contract shall be subject to approval by the vote of a majority of the
Trustees of the Trust who are not interested persons of the Investment
Adviser, 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 1940 Act.
3. INFORMATION SUPPLIED BY THE TRUST. The Trust will, from time to time,
deliver to the Investment Adviser detailed statements of the assets
and resources of the Fund and information as to its investment
objectives.
4. ADVISORY SERVICES.
(a) The Investment Adviser 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. The
Investment Adviser 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 Declaration of Trust, By-Laws and its
registration statements under the 1940 Act and under the
Securities Act of 1933 covering the Trust's shares, as filed with
the Securities and Exchange Commission, 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 of the
Trust may from time to time establish. To carry out such
determinations, the Investment Adviser will place orders for the
investment and reinvestment of Fund assets. The Investment
Adviser will exercise full discretion and act for the Trust in
the same manner and with the same force and effect as the Trust
itself might or could do with respect to purchases, sales or
other transactions, as well as with respect to all other things
necessary or incidental to the furtherance or conduct of such
purchases, sales or other transactions.
(b) The Investment Adviser will, to the extent reasonably required in
the conduct of the business of the Fund and upon its request,
furnish to the Fund research, statistical and advisory reports
upon the industries, businesses, corporations or securities as to
which such requests shall be made, whether or not the Fund shall
at the time have any investment in such industries, businesses,
corporations or securities. The Investment Adviser will use its
best efforts in the preparation of such reports and will endeavor
to consult the persons and sources believed by it to have
information available with respect to such industries,
businesses, corporations or securities.
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(c) The Investment Adviser 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. The Investment Adviser will also provide
to the Trust's Board of Trustees such periodic and special
reports as the Board may reasonably request.
5. ALLOCATION OF CHARGES AND EXPENSES. The Investment Adviser will pay
all costs incurred by it in connection with the performance of its
duties under Section 4. The Investment Adviser will pay the
compensation and expenses of all of its personnel and will make
available, without expense to the Fund, the services of such of its
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. The Investment Adviser will not
be required to pay any expenses of the Fund other than those
specifically allocated to the Investment Adviser in this paragraph 5.
In particular, but without limiting the generality of the foregoing,
the Investment Adviser will not be required to pay: (i) fees and
expenses of any administrator of the Fund; (ii) organization expenses
of the Fund; (iii) fees and expenses incurred by the Fund 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, accounting or auditing expenses
(including an allocable portion of the cost of its employees rendering
legal services to the Fund); (vii) interest, insurance premiums, taxes
or governmental fees; (viii) the fees and expenses of the transfer
agent of the Fund; (ix) the cost of preparing stock certificates or
any other expenses, including clerical expenses of issue, redemption
or repurchase of shares of the Fund; (x) the expenses of and fees for
registering or qualifying shares for sale and of maintaining the
registration of the Fund 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 the Investment Adviser; (xii) the cost of
preparing and distributing reports and notices to shareholders, the
Securities and Exchange Commission and other regulatory authorities;
(xiii) the fees or disbursements of custodians of the Fund's assets,
including expenses incurred in the performance of any obligations
enumerated by the Declaration of Trust or By-Laws of the Trust insofar
as they govern agreements with any such custodian; (xiv) costs in
connection with annual or special meetings of shareholders, including
proxy material preparation, printing and mailing; or (xv) litigation
and indemnification
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expenses and other extraordinary expenses not incurred in the ordinary
course of the Fund's business. The Investment Adviser shall not be
required to pay expenses of activities which are primarily intended to
result in sales of shares of the Fund.
6. LIMITATION OF LIABILITY.
(a) THE INVESTMENT ADVISER. The Investment Adviser will not be liable
for any error of judgment or mistake of law or for any loss
sustained by reason of the adoption of any investment policy or
the purchase, sale, or retention of any security on the
recommendation of the Investment Adviser, whether or not such
recommendation shall have been based upon its own investigation
and research or upon investigation and research made by any other
individual, firm or corporation; but nothing contained herein
will be construed to protect the Investment Adviser against any
liability to the Fund or its shareholders by reason of willful
misfeasance, bad faith or gross negligence in the performance of
its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement.
(b) THE TRUST AND THE FUND. It is understood and expressly stipulated
that none of the Trustees or shareholders of the Trust shall be
personally liable hereunder. Neither the Trustees, officers,
agents nor shareholders of the Trust assume any personal
liability for obligations entered into on behalf of the Trust.
All persons dealing with the Trust must look solely to the
property of the Trust for the enforcement of any claims against
the Trust. No series of the Trust shall be liable for any claims
against any other series.
7. COMPENSATION OF THE INVESTMENT ADVISER. Neither the Investment Adviser
nor any affiliate of the Investment Adviser will act as principal or
receive directly or indirectly any compensation in connection with the
purchase or sale of investment securities by the Trust, other than the
compensation provided for in this Section and such brokerage
commissions as are permitted by the 1940 Act, it being contemplated
that WPG will act as principal broker for the Trust in U.S. securities
transactions.
(a) Except as provided in Subsection (b) below, the Trust, on behalf
of the Fund, will pay the Investment Adviser an annual fee,
payable monthly, which varies in accordance with the total amount
of daily net assets of the Fund under the management of
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the Investment Adviser. The annual advisory fee expressed as a
percentage of the average daily net assets of the Fund is 0.50%
of net assets up to $500 million, 0.45% of net assets of $500
million to $1 billion, 0.40% of net assets of $1 billion to $1.5
billion and 0.35% of net assets in excess of $1.5 billion. For
any period less than a full month during which this Agreement is
in effect, the fee shall be prorated according to the proportion
which such period bears to a full month. For the purposes hereof,
the net assets of the Fund shall be computed in the manner
specified in the Fund's prospectus for the computation of the
value of such net assets in connection with the determination of
the net asset value of its shares. On any day that the net asset
value calculation is suspended as specified in the Fund's
prospectus, the net asset value for purposes of calculating the
advisory fee shall be calculated as of the date last determined.
(b) If the operating expenses of the Fund in any year (including the
investment advisory fee referred to in Subsection (a) above, but
excluding taxes, brokerage commissions, interest, dividends on
securities sold short, distribution expenses, and extraordinary
legal fees and expenses) exceed the limits set by certain state
securities administrators in states in which shares of the Fund
are sold, the amount payable to the Investment Adviser under
Subsection (a) above will be reduced (but not below $0) by the
amount of such excess. If amounts have already been advanced to
the Investment Adviser under this Agreement, the Investment
Adviser will return such amounts to the Fund to the extent
required by the preceding sentence.
(c) In addition to the foregoing, the investment Adviser may from
time to time agree not to impose all or a portion of its 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 the Investment
Adviser. Any such fee reduction or undertaking may be
discontinued or modified by the Investment Adviser at any time.
8. ADVERTISING MATERIAL. The Trust will not approve or authorize the use
or distribution, in connection with the offering of its shares for
sale, of any literature or advertisements in any form or through any
medium, written or oral, unless not less than ten (10) days prior to
the giving of such approval or authorization by the Trust, the Trust
shall have submitted such literature or advertising to the Investment
Adviser and
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the Investment Adviser, within ten (10) days, shall either have
specifically approved or shall have failed to disapprove such
literature or advertising.
9. DURATION AND TERMINATION OF THIS AGREEMENT.
(a) DURATION. This Agreement shall remain in force until April 30,
1995 and from year to year thereafter, but only so long as such
continuance is specifically approved at least annually by a vote
of a majority of the Trustees, including a majority of the
Trustees who are not parties hereto or "interested persons" (as
defined by the 0000 Xxx) of the Investment Adviser, or by vote of
a "majority of the outstanding voting shares" (as defined in the
0000 Xxx) of the Trust, subject to the provisions for termination
and all of the other terms and conditions hereof.
(b) VOLUNTARY TERMINATION. This Agreement may be terminated without
the payment of any penalty by (a) the Trust, upon sixty (60) days
notice in writing to the Investment Adviser provided such
termination is authorized by resolution of the Trustees of the
Trust or by a vote of a "majority of its outstanding voting
shares" of the Fund (as defined in the Act) and (b) the
Investment Adviser upon sixty (60) days notice in writing to the
Trust.
(c) AUTOMATIC TERMINATION. This Agreement will automatically and
immediately terminate in the event of its "assignment," as that
term is used in the 1940 Act and rules and regulations
promulgated thereunder, by the Investment Adviser.
10. TRADING, SERVICES TO OTHERS, BROKERAGE. Nothing in this Agreement will
in any way limit or restrict the Investment Adviser or any of its
officers, directors, partners or employees from buying, selling or
trading in any securities for its own or other accounts. The
Investment Adviser may act as an investment adviser to any other
person, firm or corporation, and may perform management and any other
services for any other person, association, corporation, firm or other
entity pursuant to any contract or otherwise, and take any action or
do anything in connection therewith or related thereto; and no such
performance of management or other services or taking of any such
action or doing of any such thing shall be in any manner restricted or
otherwise affected by any aspect of any relationship of the Investment
Adviser to or with the Trust or deemed to violate or give rise to any
duty or obligation of the Investment Adviser to the Trust; provided,
however, that it is understood that any advice rendered to the Trust
by the Investment
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Adviser will be used solely for the benefit of the Trust. The Trust
recognizes that Investment Adviser, in effecting transactions for
their various accounts, may not always be able to take or liquidate
investment positions in the same security at the same time and at the
same price.
11. NAME OF THE TRUST. The Trust hereby agrees that in the event that
neither the Investment Adviser nor any of its affiliates acts as
investment adviser to the Trust, the name of the Trust and the Fund
will be changed to one that does not contain the name "Xxxxx, Xxxx &
Xxxxx" or the initials "WPG" or otherwise suggest an affiliation with
the Investment Adviser.
12. SERIES OF THE TRUST. The Investment Adviser recognizes that the Trust
may terminate any series of the Trust, and may create new series.
13. CHANGE OF MEMBERSHIP OF INVESTMENT ADVISER. The Investment Adviser
hereby agrees to notify the Trust of any change in the membership of
its partnership within a reasonable time after such change.
14. INDEPENDENT CONTRACTOR. The Investment Adviser is an independent
contractor and not an employee of the Trust for any purpose.
15. ENTIRE AGREEMENT. This Agreement states the entire agreement of the
parties hereto, and is intended to be the complete and exclusive
statement of the terms hereof. It may not be added to or changed
orally, and may not be modified or rescinded except by a writing
signed by the parties hereto and in accordance with the 1940 Act, when
applicable.
16. NOTICES. Any notices sent pursuant to this Agreement may be sent by
mail (postage prepaid) as follows, or to such other address or
addresses as the party may advise in writing:
(a) In the case of notices sent to the Fund to:
Xxxxx, Xxxx & Xxxxx Funds Trust
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
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(b) In the case of notices sent to the Investment Adviser to:
XXXXX, XXXX & XXXXX
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
17. GOVERNING LAW. This Agreement and all performance hereunder shall be
governed by the laws of the State of New York, which apply to
contracts made and to be performed in the State of New York.
18. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
WPG FUNDS TRUST, on behalf of
WPG TAX FREE MONEY MARKET FUND
By:_________________________________
Its:________________________________
XXXXX, XXXX & XXXXX
By:_________________________________
Its:________________________________
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