EXHIBIT 6
INVESTMENT ADVISORY/ADMINISTRATION AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT, made as of May 31, 1997, and amended
June 1, 2004 (the "Agreement"), by and between XXX XXXXXX SELECT SECTOR
MUNICIPAL TRUST (the "Fund"), a Massachusetts business trust, and XXX XXXXXX
ASSET MANAGEMENT (the "Adviser"), a Delaware corporation.
1. (a) RETENTION OF ADVISER BY FUND.
(i) The Fund hereby employs the Adviser to act as the investment
adviser for and to manage the investment and reinvestment of the assets of the
Fund in accordance with the Fund's investment objective and policies and
limitations, and to administer its affairs to the extent requested by, and
subject to the review and supervision of, the Board of Trustees of the Fund for
the period and upon the terms herein set forth. The investment of funds shall be
subject to all applicable restrictions of applicable law and of the Declaration
of Trust and By-Laws of the Fund, and resolutions of the Board of Trustees of
the Fund as may from time to time be in force and delivered or made available to
the Adviser.
(ii) The Fund hereby employs the Adviser to act as the administrator
to the Fund for the purpose of furnishing the services set forth in paragraph 2
below.
(b) ADVISER'S ACCEPTANCE OF EMPLOYMENT. The Adviser accepts such
employment and agrees during such period to render such services, to supply
investment research and portfolio management (including without limitation the
selection of securities for the Fund to purchase, hold or sell and the selection
of brokers through whom the Fund's portfolio transactions are executed, in
accordance with the policies adopted by the Fund and its Board of Trustees), to
administer the business affairs of the Fund, to furnish offices and necessary
facilities and equipment to the Fund, to provide administrative services for the
Fund, to render periodic reports to the Board of Trustees of the Fund, and to
permit any of its officers or employees to serve without compensation as
trustees or officers of the Fund if elected to such positions.
(c) ESSENTIAL PERSONNEL. For a period of one year commencing on the
effective date of this Agreement, the Adviser and the Fund agree that the
retention of (i) the chief executive officer, president, chief financial officer
and secretary of the Adviser and (ii) each director, officer and employee of the
Adviser or any of its Affiliates (as defined in the Investment Company Act of
1940, as amended (the "1940 Act")) who serves as an officer of the Fund (each
person referred to in (i) or (ii) hereinafter being referred to as an "Essential
Person"), in his or her current capacities, is in the best interest of the Fund
and the Fund's shareholders. In connection with the Adviser's acceptance of
employment hereunder, the Adviser hereby agrees and covenants for itself and on
behalf of its Affiliates that neither the Adviser nor any of its Affiliates
shall make any material or significant personnel changes or replace or seek to
replace any Essential Person or cause to be replaced any Essential Person, in
each case without first informing the Board of Trustees of the Fund in a timely
manner. In addition, neither the Adviser nor any Affiliate of the Adviser shall
change or seek to change or cause to be changed, in any material respect, the
duties and responsibilities of any Essential Person, in each case without first
informing the Board of Trustees of the Fund in a timely manner.
(d) INDEPENDENT CONTRACTOR. The Adviser shall be deemed to be an
independent contractor under this Agreement and, unless otherwise expressly
provided or authorized, shall have no authority to act for or represent the Fund
in any way or otherwise be deemed as agent of the Fund.
(e) NON-EXCLUSIVE AGREEMENT. The services of the Adviser to the Fund under
this Agreement are not to be deemed exclusive, and the Adviser shall be free to
render similar services or other services to others so long as its services
hereunder are not impaired thereby.
2. SERVICES AND DUTIES AS ADMINISTRATOR. Subject to the supervision of the
Fund's Board of Trustees (the "Board), the Adviser, in its role as
administrator, will:
(a) Prepare and assemble all reports required to be sent to the
Fund Shareholders, and arrange for the printing and
dissemination of such reports to Shareholders;
(b) Assemble all reports required to be filed with the Securities
and Exchange Commission (the "SEC") on Form N-SAR, or such
other form as the SEC may substitute for Form N-SAR, and file
such completed form with the SEC;
(c) Arrange for the dissemination to Shareholders of the Fund's
proxy materials and oversee the tabulation of proxies by the
Fund's transfer agent;
(d) Negotiate the terms and conditions under which custodian
services will be provided to the Fund and the fees to be paid
by the Fund to its custodian (which may or may not be an
affiliate of the Fund's investment adviser) in connection
therewith;
(e) Negotiate the terms and conditions under which dividend
disbursing services will be provided to the Fund, and the fees
to be paid by the Fund in connection therewith; review the
provision of dividend disbursing services to the Fund;
(f) Determine the amounts available for distribution as dividends
and distributions to be paid by the Fund to its Shareholders;
prepare and arrange for the printing of dividend notices to
Shareholders; and provide the Fund's dividend disbursing agent
and custodian with such information as is required for such
parties to effect the payment of dividends and distributions
and to implement the Fund's dividend reinvestment plan;
(g) Provide Shareholder services to holders or potential holders
of the Fund's securities including but not limited to
responding to Shareholder requests for information;
(h) Assist in providing to the Fund's independent accountants such
information as is necessary for such accountants to prepare
and file the Fund's federal income and excise tax returns and
the Fund's state and local tax returns;
(i) Monitoring compliance of the Fund's operations with the 1940
Act and with its investment policies and limitations as
currently in effect;
(j) In connection with the issuance of the Preferred Shares,
calculate, monitor and provide the rating agencies such asset
coverage and liquidity reports as the Board deems advisable
with respect to obtaining a rating on the Preferred Shares;
(k) Oversee the maintenance of the Fund's books and records under
Rule 31a-1 under the 1940 Act by the custodians and accounting
agent, as applicable; and
(l) Make such reports and recommendations to the Board as the
Board reasonable requests or deems appropriate.
3. PUBLIC INQUIRIES. The Fund and the Adviser agree that the Adviser, in its
role as administrator, will not be responsible for replying to questions or
requests for information concerning the Fund from Shareholders, brokers or the
public. The Fund will inform the Adviser of the party or parties to whom any
such questions or requests should be directed, and the Adviser will refer such
questions and requests to such party or parties.
4. (a) FEE. For the services and facilities described in Section 1, the Fund
will pay to the Adviser at the end of each calendar month an investment
advisory/administration fee equal to 0.60% of the average daily managed assets
of the Fund. For purposes of determining such fee, average daily managed assets
shall mean the average daily value of the Fund, minus the sum of accrued
liabilities other than the aggregate amount of any borrowings undertaken by the
Fund.
(b) DETERMINATION OF NET ASSET VALUE. The net asset value of the Fund
shall be calculated as of the close of the New York Stock Exchange on each day
the Exchange is open for trading or such other time or times as the trustees may
determine in accordance with the provisions of applicable law and the
Declaration of Trust and By-Laws of the Fund, and resolutions of the Board of
Trustees of the Fund as from time to time in force. For the purpose of the
foregoing computations, on each day when net asset value is not calculated, the
net asset value of a share of beneficial interest of the Fund shall be deemed to
be the net asset value of such share as of the close of business of the last day
on which such calculation was made.
(c) PRORATION. For the month and year in which this Agreement becomes
effective or terminates, there shall be an appropriate proration of the
Adviser's fee on the basis of the number of days that the Agreement is in effect
during such month and year, respectively.
5. EXPENSES. In addition to the fee of the Adviser, the Fund shall assume and
pay any expenses for services rendered by a custodian for the safekeeping of the
Fund's securities or other property, for keeping its books of account, for any
other charges of the custodian and for calculating the net asset value of the
Fund as provided above. The Adviser shall not be required to pay, and the Fund
shall assume and pay, the charges and expenses of its operations, including
compensation of the trustees (other than those who are interested persons of the
Adviser and other than those who are interested persons of the distributor of
the Fund but not of the Adviser, if the distributor has agreed to pay such
compensation), charges and expenses of independent accountants, of legal counsel
and of any transfer or dividend disbursing agent, costs of acquiring and
disposing of portfolio securities, cost of listing shares on the New York Stock
Exchange or other exchange, interest (if any) on obligations incurred by the
Fund, costs of share certificates, membership dues in the Investment Company
Institute or any similar organization, costs of reports and notices to
shareholders, costs of registering shares of the Fund under federal securities
laws, miscellaneous expenses and all taxes and fees to federal, state or other
governmental agencies on account of the registration of securities issued by the
Fund, filing of corporate documents or otherwise. The Fund shall not pay or
incur any obligation for any management or administrative expenses for which the
Fund intends to seek reimbursement from the Adviser without first obtaining the
written approval of the Adviser. The Adviser shall arrange, if desired by the
Fund, for officers or employees of the Adviser to serve, without compensation
from the Fund, as trustees, officers or agents of the Fund if duly elected or
appointed to such positions and subject to their individual consent and to any
limitations imposed by the law.
6. INTERESTED PERSONS. Subject to applicable statutes and regulations, it is
understood that trustees, officers, shareholders and agents of the Fund are or
may be interested in the Adviser as directors, officers, shareholders, agents or
otherwise and that the directors, officers, shareholders and agents of the
Adviser may be interested in the Fund as trustees, officers, shareholders,
agents or otherwise.
7. COMPLIANCE WITH THE FUND'S GOVERNING DOCUMENTS AND APPLICABLE LAWS. In all
matters relating to the performance of this Agreement, the Adviser will act in
conformity with the Declaration of Trust, By-Laws and registration statements of
the Fund and with the directions of the Board and Fund executive officers and
will conform to and comply with the requirements of the 1940 Act and all other
applicable federal or state laws and regulations.
8. LIABILITY. The Adviser shall not be liable for any error of judgment or 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 the part of the Adviser in
the performance of its obligations and duties, or by reason of its reckless
disregard of its obligations and duties under this Agreement.
9. (a) TERM. This Agreement shall become effective on the date hereof and shall
remain in full force until May 31, 1999, unless sooner terminated as hereinafter
provided. This Agreement shall continue in force from year to year thereafter,
but only so long as such continuance is specifically approved at least annually,
in the manner required by the 1940 Act.
(b) TERMINATION. This Agreement will automatically terminate in the event
of its assignment. This Agreement may be terminated at any time without the
payment of any penalty by the Fund or by the Adviser on sixty (60) days written
notice to the other party. The Fund may effect termination by action of the
Board of Trustees or by vote of a majority of the outstanding shares of stock of
the Fund, accompanied by appropriate notice. This Agreement may be terminated at
any time without the payment of any penalty and without advance notice by the
Board of Trustees or by vote of a majority of the outstanding shares of the Fund
in the event that it shall have been established by a court of competent
jurisdiction that the Adviser or any officer or director of the Adviser has
taken any action which results in a breach of the covenants of the Adviser set
forth herein.
(c) PAYMENT UPON TERMINATION. Termination of this Agreement shall not
affect the right of the Adviser to receive payment on any unpaid balance of the
compensation described in Section 4 earned prior to such termination.
10. SEVERABILITY. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder shall not
thereby affected.
11. NOTICES. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party at such address as such
other party may designate for the receipt of such notice.
12. DISCLAIMER. The Adviser acknowledges and agrees that, as provided by Section
5.5 of the Declaration of Trust of the Trust, the shareholders, trustees,
officers, employees and other agents of the Fund and the Fund shall not
personally be bound by or liable hereunder, nor shall resort be had to their
private property for the satisfaction of any obligation or claim hereunder.
13. GOVERNING LAW. All questions concerning the validity, meaning and effect of
this Agreement shall be determined in accordance with the laws (without giving
effect to the conflict-of-law principles thereof) of the State of Massachusetts
applicable to contracts made and to be performed in that state.
14. NAME. In connection with its employment hereunder, the Adviser hereby agrees
and covenants not to change its name without the prior consent of the Board of
Trustees of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as amended on June 1, 2004.
XXX XXXXXX ASSET MANAGEMENT XXX XXXXXX SELECT SECTOR
MUNICIPAL TRUST
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------ -------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Managing Director Title: Executive Vice President and
Chief Executive Officer
AMENDMENT
TO THE
INVESTMENT ADVISORY/ADMINISTRATION AGREEMENT
This Amendment, dated August 25, 2000, to the Investment Advisory/Administration
Agreement, dated May 31, 1997 (the "Agreement"), by and between Xxx Xxxxxx
Select Sector Municipal Trust (the "Fund"), a Massachusetts business trust (the
"Trust"), and Xxx Xxxxxx Investment Advisory Corp. (the "Adviser,"), a Delaware
corporation, hereby amends the terms and conditions of the Agreement in the
manner specified herein.
WITNESSETH
WHEREAS, the Board of Trustees of the Fund at a meeting held on August 25, 2000
has approved a reduction in the investment advisory/administration fee payable
by the Fund to the Adviser; and
WHEREAS, the parties desire to amend and restate Section 4. (a) of the Agreement
relating to the investment advisory/administration fee.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements hereinafter contained, the parties hereby agree to amend the
Agreement, as follows:
Section 4.(a) of the Agreement is hereby deleted in its entirety and replaced
with the following:
4. (a) Fee. For the services and facilities described in Section 1, the Fund
will pay to the Adviser at the end of each calendar month an investment
advisory/administration fee equal to 0.650% of the average daily managed assets
of the Fund. For purposes of determining such fee, average daily managed assets
shall mean the average daily value of the Fund, minus the sum of accrued
liabilities other than the aggregate amount of any borrowings undertaken by the
Fund.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first above written.
XXX XXXXXX SELECT SECTOR XXX XXXXXX INVESTMENT ADVISORY CORP.
MUNICIPAL TRUST
By: By:
/s/ Xxxx Xxxxxxxx /s/ Xxxxxx X. Xxxx, III
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Xxxx Xxxxxxxx Xxxxxx X. Xxxx, III
Vice President, Treasurer Executive Director
and Chief Financial Officer
