Exhibit 5(b)
Xxxxxxx Tax Free Trust
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
August 10, 1993
Xxxxxxx, Xxxxxxx & Xxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Investment Advisory Agreement
Ladies and Gentlemen:
Xxxxxxx Tax Free Trust (the "Fund") has been established as a
Massachusetts business trust to engage in the business of an investment company.
The shares of beneficial interest of the Fund are divided into separate series,
including Xxxxxxx Medium Term Tax Free Fund (the "Portfolio"), which is
established pursuant to a written instrument executed by the Trustees of the
Fund. Portfolios may be terminated, and additional Portfolios established, from
time to time by action of the Trustees. The Fund has selected you to act as the
sole investment adviser of the Fund and to provide certain other 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 Fund agrees with you as follows:
1. Delivery of Fund Documents. The Fund has furnished you with copies
properly certified or authenticated of each of the following:
(a) An Amended and Restated Declaration of Trust of the Fund, dated
December 8, 1987, as amended from time to time.
(b) By-Laws of the Fund as in effect on the date hereof.
(c) Resolutions of the Trustees selecting you as investment adviser and
approving the form of this Agreement.
(d) Written Instrument to Establish and Designate Separate Series of
Shares.
The Fund will furnish you from time to time with copies, properly
certified or authenticated, of all amendments of or supplements to the
foregoing, if any.
2. Name of Fund. The Fund may use the name "Xxxxxxx Tax Free Trust" or any
name derived from the name "Xxxxxxx, Xxxxxxx & Xxxxx" 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. At such time as such an agreement shall
no longer be in effect, the Fund will (to the extent that it lawfully can) 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.
3. Advisory Services. You will regularly provide the Portfolio with
investment research, advice and supervision and will furnish continuously an
investment program for the Portfolio consistent with the investment objectives
and policies of such Portfolio and of the Fund. You will determine what
securities shall be purchased for the Portfolio, what securities shall be held
or sold by the Portfolio, and what portion of the Portfolio's assets shall be
held uninvested, subject always to the provisions of the Fund's Declaration of
Trust and By-Laws and of the Investment Company Act of 1940, as amended, and to
the investment objectives, policies and restrictions of the Portfolio and 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 Trustees may from time to time
establish. You shall advise and assist the officers of the Fund in taking such
steps as are necessary or appropriate to carry out the decisions of the Trustees
and the appropriate committees of the Trustees regarding the conduct of the
business of the Fund.
4. Allocation of Charges and Expenses. You will pay the compensation and
expenses of all officers and executive employees of the Fund and will make
available, without expense to the Fund, the services of such of your directors,
officers and employees as may duly be elected officers or Trustees of the Fund,
subject to their individual consent to serve and to any limitations imposed by
laws. You will pay the Fund's office rent and will provide investment advisory
research and statistical facilities and all clerical services relating to
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research, statistical and investment work. You will not be required to pay any
expenses of the Fund 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: organization expenses of the Fund;
clerical salaries; fees and expenses incurred by the Fund in connection with
membership in investment company organizations; brokers' commissions; payment
for portfolio pricing services to a pricing agent, if any; legal, auditing or
accounting expenses; taxes or governmental fees; the fees and expenses of the
transfer agent of the Fund; the cost of preparing share certificates or any
other expenses, including clerical expenses of issue, redemption or repurchase
of shares of the Fund; the expenses of and fees for registering or qualifying
securities for sale; the fees and expenses of Trustees of the Fund who are not
affiliated with you; the cost of preparing and distributing reports and notices
to shareholders; or 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 Fund insofar as they
govern agreements with any such custodian. You shall not be required to pay
expenses, including clerical expenses, of offer, sale, underwriting and
distribution of the Fund's shares if and to the extent that such expenses (i)
are required to be borne by a principal underwriter which acts as the
distributor of the Fund's shares pursuant to an underwriting agreement which
provides that the underwriter shall assume some or all of such expenses, or (ii)
the Fund shall have adopted a plan in conformity with Rule 12b-1 under the
Investment Company Act of 1940, as amended, providing that the Fund shall assume
some or all of such expenses. You shall be required to pay such of the foregoing
expenses as are not required to be paid by the principal underwriter or
permitted to be paid by the Fund pursuant to such a plan.
5. Compensation of the Adviser. For all services to be rendered and
payments made as provided in paragraphs 3 and 4 hereof, the Fund will pay you on
the last day of each month a fee equal to the sum of 1/12 of 0.60 of 1% of the
average daily net assets as defined below of the Portfolio of the Fund for such
month; provided that, for any calendar month during which the average of such
values exceeds $500 million, the fee payable for that month based on the portion
of the average of such values in excess of $500 million shall be 1/12 of 0.50 of
1% of such portion. The "average daily net assets" of the Portfolio are defined
as the average of the values placed on the net assets of such Portfolio as of
4:00 p.m. (New York time), on each day on which the net asset value of the
Portfolio is determined consistent with the provisions of Rule 22c-1 under the
Investment Company Act of 1940 or, if the Fund lawfully determines the value of
the net assets of a Portfolio as of some other time on each business day, as of
such time. The value of net assets of the Portfolio shall be determined pursuant
to the applicable provisions of the Declaration of Trust of the Fund. If,
pursuant to such provisions. the determination of net asset value is suspended
for any particular business day, then for the purposes of this paragraph 5, the
value of the net assets of the Portfolio of the Fund as last determined shall be
deemed to be the value of the net assets as of the close of the New York Stock
Exchange, or as of such other time as the value of the net assets of the Fund's
Portfolio may lawfully be determined, on that day. If the determination of the
net asset value of the shares of the Fund's Portfolio has been suspended
pursuant to the Declaration of Trust of the Fund for a period, including such
month, your compensation payable at the end of such month shall be computed on
the basis of the value of the net assets of the Portfolio of the Fund as last
determined (whether during or prior to such month). If the Fund determines the
value of the net assets of the Portfolio more than once on any day, the last
such determination thereof on that day shall be deemed to be the sole
determination thereof on that day for the purposes of this paragraph 5. You
agree that your compensation for any fiscal year shall be reduced by the amount,
if any, by which the expenses of the Fund for such fiscal year exceed the lowest
applicable expense limitation established pursuant to the statutes or
regulations of any jurisdiction in which the shares of the Fund may be qualified
for offer and sale. You shall refund to the Fund the amount of any reduction of
your compensation pursuant to this paragraph 5 as promptly as practicable after
the end of such fiscal year, provided that you will not be required to pay the
Fund an amount greater than the fee paid to you in respect of such year pursuant
to this Agreement. As used in this paragraph 5, "expenses" shall mean those
expenses included in the applicable expense limitation having the broadest
specifications thereof, and "expense limitation" means a limit on the maximum
annual expenses which may be incurred by an investment company determined (i) by
multiplying a fixed percentage by the average, or by multiplying more than one
such percentage by different specified amounts of the average, of the values of
an investment company's net assets for a fiscal year or (ii) by multiplying a
fixed percentage by an investment company's net investment income for a fiscal
year. The words "lowest applicable expense limitation" shall be construed to
result in the largest reduction of your compensation for any fiscal year of the
Fund.
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 directors, officers or employees will act as a principal or agent or
receive any commission. 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 selected by you. In the selection
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of such brokers or dealers 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. If any occasion should arise in which you give any advice to clients
of yours concerning the shares of the Fund, you will act solely as investment
counsel for such clients and not in any way on behalf of the Fund. Your services
to the Fund pursuant to this Agreement are not to be deemed to be exclusive and
it is understood that you may render investment advice, management and other
services to others.
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 Fund shall
be deemed, when acting within the scope of his employment by the Fund, to be
acting in such employment solely for the Fund and not as your employee or agent.
8. Duration and Termination of this Agreement. This Agreement shall remain
in force with respect to the Portfolio until September 30, 1994 and from year to
year thereafter, but only so long as such continuance is specifically approved
at least annually by the vote of a majority of the Trustees who are not
interested persons of you or of the Fund, cast in person at a meeting called for
the purpose of voting on such approval and by a vote of the Trustees or of a
majority of the outstanding voting securities of the Portfolio. This Agreement
may, on 60 days' written notice, be terminated with respect to the Portfolio at
any time without the payment of any penalty, by the Trustees, by vote of a
majority of the outstanding voting securities of the Portfolio, 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 Investment Company Act of 1940, as modified by Rule 18f-2
under the 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, and no amendment of this Agreement shall be
effective with respect to the Portfolio until approved by vote of the holders of
a majority of the outstanding voting securities of the Portfolio and by the
Trustees, including a majority of the Trustees who are not interested persons of
you or of the Fund, cast in person at a meeting called for the purpose of voting
on such approval.
10. Miscellaneous. It is understood and expressly stipulated that neither
the holders of shares of the Fund nor the Trustees shall be personally liable
hereunder. 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 Tax Free Trust" is the designation of the Trustees for
the time being under an Amended and Restated Declaration of Trust dated December
8, 1987 and all persons dealing with the Fund must look solely to the property
of the Fund for the enforcement of any claims against the Fund as neither the
Trustees, officers, agents or shareholders assume any personal liability for
obligations entered into on behalf of the Fund.
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 Fund, whereupon this letter shall become a binding contract.
Yours very truly,
XXXXXXX TAX FREE TRUST
/s/ Xxxxx X. Xxx
--------------------------
President
The foregoing Agreement is hereby accepted as of the date thereof.
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XXXXXXX, XXXXXXX & XXXXX, INC.
By /s/ Xxxxxx Xxxxxx
--------------------------
Managing Director
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