AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
October 4, 1993
Xxxxxx Xxxx Investment Management Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
BJB Investment Funds (the "Trust"), a business trust organized under the
law of The Commonwealth of Massachusetts, entered into an investment advisory
agreement with Xxxxxx Xxxx Investment Management Inc. (the "Adviser"), a
corporation organized under the laws of the state of Delaware, on June 23, 1992.
The Trust herewith confirms its agreement with the Adviser to amend and restate
such agreement in its entirety regarding investment advisory services to be
provided by the Adviser in connection with the Trust's BJB Global Income Fund
(the "Fund") as follows:
1. Investment Description; Appointment
The Trust desires to employ the Fund's capital by investing and reinvesting
in investments of the kind and in accordance with the limitations specified in
the Trust's Master Trust Agreement, as the same may from time to time be
amended, and in its Registration Statement as from time to time in effect, and
in such manner and to such extent as may from time to time be approved by the
Board of Trustees of the Trust. Copies of the Trust's Registration Statement
and Master Trust Agreement have been or will be submitted to the Adviser. The
Trust agrees to provide copies of all amendments to the Trust's Registration
Statement and Master Trust Agreement to the Adviser on an on-going basis. The
Trust desires to employ and hereby appoints the Adviser to act as investment
adviser to the Fund. The Adviser accepts the appointment and agrees to furnish
the services described herein for the compensation set forth below.
2. Services as Investment Adviser
Subject to the supervision and direction of the Board of Trustees of the
Trust, the Adviser will (a) act in accordance with the Trust's Master Trust
Agreement, the Investment Company Act of 1940 and the Investment Advisors Act
of 1940, as the same from time to time be amended, (b) manage the Fund's assets
in accordance with its investment objective and policies as stated in the
Trust's Registration Statement as from time to time in effect, (c) make
investment decisions and exercise voting rights in respect of portfolio
securities for the Fund and (d) place purchase and sale orders on behalf of the
Fund. In providing these services, the Adviser will provide investment
research and supervision of the Fund's investments and conduct a continual
program of investment, evaluation and, if appropriate, sale and reinvestment
of the Fund's assets. In addition,
the Adviser will furnish the Fund with whatever statistical information the Fund
may reasonably request with respect to the securities that the Fund may hold or
contemplate purchasing.
3. Brokerage
In executing transactions for the Fund and selecting brokers or dealers,
the Adviser will use its best efforts to seek the best overall terms available.
In assessing the best overall terms available for any Fund transaction, the
Adviser will consider all factors it deems relevant including, but not limited
to, breadth of the market in the security, the price of the security, the
financial condition and execution capability of the broker or dealer and the
reasonableness of any commission for the specific transaction on a continuing
basis. In selecting brokers or dealers to execute a particular transaction and
in evaluating the best overall terms available, the Adviser may consider the
brokerage and research services (as those terms are defined in Section 28(e) of
the Securities Exchange Act of 1934) provided to the Trust and/or other
accounts over which the Adviser or an affiliate exercises investment
discretion.
4. Information Provided to the Trust
The Adviser will use its best efforts to keep the Trust informed of
developments materially affecting the Fund, and will, on its own initiative,
furnish the Trust from time to time whatever information the Adviser believes
is appropriate for this purpose.
5. Standard of Care
The Adviser shall exercise its best judgment in rendering the services
described in paragraphs 2, 3 and 4 above. The Adviser 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, provided that
nothing herein shall be deemed to protect or purport to protect the Adviser
against any liability to the Fund or its shareholders to which the Adviser
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence on its part in the performance of its duties from reckless disregard
by it of its obligations and duties under this Agreement ("disabling conduct").
The Fund will indemnify the Adviser against, and hold it harmless from, any and
all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand, action or suit not
resulting from disabling conduct by the Adviser. Indemnification shall be made
only following: (i) a final decision on the merits by a court or other body
before whom the proceeding was brought that the person to be indemnified was
not liable by reason of disabling conduct or (ii) in the absence of such a
decision, a reasonable determination, based upon a review of the facts, that the
person to be indemnified was not liable by reason of disabling conduct by (a)
the vote of a majority of a quorum of non-party trustees who are not
"interested persons" of the Trust or (b) an independent legal counsel in a
written opinion.
-2-
6. Compensation
(a) In consideration of the services rendered pursuant to this Agreement,
the Fund will pay the Adviser after the end of each calendar quarter a fee for
the previous quarter calculated at an annual rate of .65 of 1.00% of the Fund's
average daily net assets. The Adviser shall pay to Bank Xxxxxx Xxxx & Co., Ltd.
(the "Sub-Adviser and Servicing Agent") or any successor thereto the fees
required under the agreement between such entity and the Adviser (the
"Sub-Advisory Agreement") In the event that the Sub-Advisory Agreement is
terminated, the Adviser shall be responsible for furnishing to the Fund the
services required to be performed under the Sub-Advisory Agreement or arranging
for a successor entity to provide such services on terms and conditions
acceptable to the Trust and subject to the requirements of the Investment
Company Act of 1940, as amended.
(b) Upon any termination of this Agreement before the end of a quarter, the
fee for such part of that quarter shall be prorated according to the proportion
that such period bears to the full quarterly period and shall be payable upon
the date of termination of this Agreement. For the purpose of determining fees
payable to the Adviser, the value of the Fund's net assets shall be computed at
the times and in the manner specified in the Trust's Registration Statement as
from time to time in effect.
7. Expenses
The Adviser will bear all expenses in connection with the performance of
its services under this Agreement, including compensation of and office space
for its officers and employees connected with investment and economic
research, trading and investment management and administration of the Fund, as
well as the fees of all Trustees of the Trust who are affiliated with the
Adviser or any of its affiliates. The Fund will bear certain other expenses to
be incurred in its operation, including: organizational expenses; taxes,
interest, brokerage costs and commissions; fees of Trustees of the Trust who
are not officers, directors, or employees of the Adviser, the Sub-Adviser and
Servicing Agent, the Fund's distributor or administrator or any of their
affiliates; Securities and Exchange Commission fees; state Blue Sky
qualification fees; charges of the custodian, any subcustodians, and transfer
and dividend-paying agents; insurance premiums; outside auditing, pricing and
legal expenses; costs of maintenance of the Trust's existence; costs
attributable to investor services, including, without limitation, telephone and
personnel expenses; costs of printing stock certificates; costs of preparing
and printing prospectuses and statements of additional information for
regulatory purposes and for distribution to existing shareholders; costs of
shareholders' reports and meetings of the shareholders of the Fund and of the
officers or Board of Trustees of the Trust; membership fees in trade
associations; litigation and other extraordinary or non-recurring expenses. In
addition, the Fund will pay distribution fees pursuant to a Distribution Plan
adopted under Rule 12b-1 of the Investment Company Act of 1940, as amended, and
pursuant to a Shareholder Services Plan.
-3-
8. Reimbursement to the Fund
If in any fiscal year the aggregate expenses of the Fund (including fees
pursuant to this Agreement and the Fund's sub-advisory agreement, but excluding
distribution fees, interest, taxes, brokerage and, if permitted by state
securities commissions, extraordinary expenses) exceed the expense limitation
of any state having jurisdiction over the Fund, the Adviser will reimburse the
Fund for such excess expenses in the same proportion as its fees under this
Agreement bear to the combined fees for investment advice and sub-investment
advice. The Adviser's expense reimbursement obligation will be limited to the
amount of its fees received pursuant to this Agreement. Such expense
reimbursement, if any, will be estimated, reconciled and paid on a monthly
basis.
9. Services to Other Companies or Accounts
The Trust understands that the Adviser now acts, will continue to act, or
may in the future act, as investment adviser to fiduciary and other managed
accounts or as investment adviser to one or more other investment companies,
and the Trust has no objection to the Adviser so acting, provided that whenever
the Fund and one or more other accounts or investment companies advised by the
Adviser have available funds for investment, investments suitable and
appropriate for each will be allocated in accordance with procedures believed
to be equitable to each entity. Similarly, opportunities to sell securities
will be allocated in an equitable manner. The Trust recognizes that in some
cases this procedure may adversely affect the size of the position that may be
acquired or disposed of for the Fund. In addition, the Trust understands that
the persons employed by the Adviser to assist in the performance of the
Adviser's duties hereunder will not devote their full time to such service and
nothing contained herein 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 businesses or to render services of whatever kind or nature.
10. Term of Agreement
This Agreement shall become effective as of the date first written above
and shall continue for an initial one-year term and shall continue thereafter
so long as such continuance is specifically approved at least annually by (i)
the Board of Trustees of the Trust or (ii) a vote of a "majority" (as defined
in the Investment Company Act of 1940, as amended) of the Fund's outstanding
voting securities, provided that in either event the continuance is also
approved by a majority of the Board of Trustees who are not "interested
persons" (as defined in said Act) 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, on 60 days' written notice, by the
Board of Trustees of the Trust or by vote of holders of a majority of the
Fund's shares, or upon 60 days' written notice, by the Adviser. This Agreement
will also terminate automatically in the event of its assignment (as defined
in said Act).
-4-
11. Representation by the Trust
The Trust represents that copy of its Master Trust Agreement, dated April
30, 1992 together with all amendments thereto, is on file in the office of the
Secretary of The Commonwealth of Massachusetts.
12. Limitation of Liability
It is expressly agreed that the obligations of the Trust hereunder shall
not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust, personally, but bind only the trust property
of the Fund, as provided in the Master Trust Agreement of the Trust. The
execution and delivery of this Agreement have been authorized by the Trustees
and the sole shareholder of Fund shares and signed by an authorized officer of
the Trust, acting as such, and neither such authorization by such Trustees and
shareholder nor such execution and delivery by such officer shall be deemed to
have been made by any of them individually or to impose any liability on any of
them personally, but shall bind only the trust property of the Fund as provided
in its Master Trust Agreement. The obligations of this Agreement shall be
binding only upon the assets and property of the Fund and not upon the assets
and property of any other sub-trust of the Trust.
13. Miscellaneous
If both the Adviser and the Sub-Adviser and Servicing Agent cease to act as
investment advisers to the Fund, the Trust agrees that, at the request of
either of them, the Trust's license to use "BJB" or any variation thereof
indicating a connection to either of those entities will terminate and that the
Trust will take all necessary action to change the names of the Trust and the
Fund to names that do not include "BJB" or any such variation.
14. Entire Agreement
This Agreement constitutes the entire agreement between the parties
hereto.
15. Governing Law
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the state of New York without giving effect to the
conflicts of laws principles thereof.
* * * * *
-5-
If the foregoing accurately sets forth our agreement, kindly indicate your
acceptance hereof by signing and returning the enclosed copy hereof.
Very truly yours,
BJB INVESTMENT FUNDS
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: CFO
Accepted:
XXXXXX XXXX INVESTMENT MANAGEMENT INC.
By: /s/ Xxx Xxxxxxxxxx
--------------------------------
Name: Xxx Xxxxxxxxxx
Title: Managing Director
