Exhibit 5(B)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 3rd day of July, 1989 by and
between PCS Cash Fund, Inc., a Maryland corporation (the "Fund")
and Xxxxxx Xxxxxxx Asset Management Inc., a Delaware corporation
(the "Adviser").
1. Duties of Adviser. The Fund hereby appoints the
Adviser to act as investment adviser to the Fund's PCS Tax-Free
Money Market Portfolio, (the "Portfolio"), for the period and on
such terms set forth in this Agreement. The Fund employs the
Adviser to manage the investment and reinvestment of the assets
of the Portfolio, to continuously review, supervise and
administer the investment program of the Portfolio, to determine
in its discretion the securities to be purchased or sold and the
portion of such Portfolio's assets to be held uninvested, to
provide the Fund with records concerning the Adviser's activities
which the Fund is required to maintain, and to render regular
reports to the Fund's officers and Board of Directors concerning
the Adviser's charge of the foregoing responsibilities. The
Adviser shall discharge the foregoing responsibilities subject to
the control of the officers and the Board of Directors of the
Fund, and in compliance with the objectives, policies and
limitations set forth in the Fund's prospectus and applicable
laws and regulations. The Adviser accepts such employment and
agrees to render the services and to provide, at its own expense,
the office space, furnishings and equipment and the personnel
required by it to perform the services on the terms and for the
compensation provided herein.
2. Portfolio Transactions. The Adviser is authorized
to select the brokers or dealers that will execute the purchases
and sales of securities for the Portfolio and is directed to use
its best efforts to obtain the best available price and most
favorable execution, except as prescribed herein. Unless and
until otherwise directed by the Board of Directors of the Fund,
the Adviser may also be authorized to effect individual
securities transactions at commission rates in excess of the
minimum commission rates available, if the Adviser determines in
good faith that such amount of commission is reasonable in
relation to the value of the brokerage or research services
provided by such broker or dealer, viewed in terms of either that
particular transaction or the Adviser's overall responsibilities
with respect to the Portfolio. The execution of such
transactions shall not be deemed to represent an unlawful act or
breach of any duty created by this Agreement or otherwise. The
Adviser will promptly communicate to the officers and Directors
of the Fund such information relating to portfolio transactions
as they may reasonably request.
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3. Expenses. If the expenses borne by the Portfolio
in any fiscal year exceed the most restrictive applicable expense
limitations imposed by the securities regulations of any state in
which the Shares of the Portfolio are registered or qualified for
sale to the public, the Investment Adviser shall reimburse the
Portfolio for any excess up to the amount of the fees payable by
the Portfolio to it during such fiscal year pursuant to Paragraph
4 hereof; provided, however, that notwithstanding the foregoing,
the Investment Adviser shall reimburse the Portfolio for such
excess expenses regardless of the amount of such fees payable to
it during such fiscal year to the extent that the securities
regulations of any state in which the Shares are registered or
qualified for sale so require.
4. Compensation of the Adviser. For the services to
be rendered by the Adviser as provided in Section 1 of this
Agreement, the Fund shall pay to the Adviser out of the assets of
the Portfolio an advisory fee computed daily and payable monthly
at the annual rate of .45% of the first $250 million of the
Portfolio's average daily net assets, .40% of the next $250
million of the Portfolio's average daily net assets, and .35% of
the Portfolio's average daily net assets in excess of $500
million.
5. Other Services. At the request of the Fund, the
Adviser, in its discretion may make available to the Fund office
facilities, equipment, personnel and other services. Such office
facilities, equipment, personnel and services shall be provided
for or rendered by the Adviser and billed to the Fund at the
Adviser's cost.
6. Reports. The Fund and the Adviser agree to
furnish to each other current prospectuses, proxy statements,
reports to shareholders, certified copies of their financial
statements, and such other information with regard to the affairs
as each may reasonably request.
7. Status of Adviser. The services of the Adviser to
the Fund are not to be deemed exclusive, and the Adviser shall be
free to render similar services to others.
8. Liability of Adviser. In the absence of (i)
willful misfeasance, bad faith or gross negligence on the part of
the Adviser in performance of its obligations and duties
hereunder, (ii) reckless disregard by the Adviser of its
obligations and duties hereunder, or (iii) a breach of fiduciary
duty with respect to the receipt of compensation for services (in
which case any award of damages shall be limited to the period
and the amount set forth in Section 36(b)(3) of the Investment
Company Act of 1940 ("1940 Act"), the Adviser shall not: be
subject to any liability whatsoever to the Fund, or to any
shareholder of the fund, for any error or judgment, mistake of
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law or any other act or omission in the course of, or connected
with rendering services hereunder including, without limitation,
for the losses that may be sustained in connection with the
purchase, holding, redemption or sale of any security on behalf
of any Portfolio of the fund.
9. Permissible Interest. Subject to and in
accordance with the Articles of Incorporation of the fund and the
Articles of Incorporation of the Adviser, Directors, officers,
agents and shareholders of the Fund are or may be interest in the
Adviser (or any successor thereof) as Directors, officers,
agents, shareholders or otherwise; Directors, officers, agents
and shareholders of the Adviser are or may be interested in the
Fund as Directors, officers, shareholders or otherwise; and the
Adviser (or any successor) is or may be interested in the Fund as
a shareholder or otherwise; and that the effect of any such
interrelationships shall be governed by said Articles of
Incorporation and the provisions of the 1940 Act.
10. Duration and Termination. This Agreement, unless
sooner terminated as provided herein, shall continue until the
earlier of July 3, 1991 or the date of the first annual or
special meeting of the shareholders of the Portfolio and, if
approved by a majority of the outstanding voting securities of
the Portfolio, thereafter shall continue for periods of one year
so long as such continuance is specifically approved at least
annually (a) by the vote of a majority of those members of the
Board of Directors of the fund 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,
and (b) by the Board of Directors of the Fund or by vote of a
majority of the outstanding voting securities of the Portfolio;
provided however, that if the shareholders of the Portfolio fail
to approve the Agreement as provided herein, the Adviser may
continue to serve in such capacity in the manner and to the
extent permitted by the 1940 Act and Rules thereunder. This
Agreement may be terminated by the Portfolio at any time, without
the payment of any penalty, by vote of a majority of the entire
Board of Directors of the Fund or by vote of a majority of the
outstanding voting securities of the Portfolio on 60 days'
written notice to the Adviser. This Agreement may be terminated
by the Adviser at any time, without the payment of any penalty,
upon 90 days' written notice to the Fund. This agreement will
automatically and immediately terminate in the event of its
assignment, provided that an assignment to a corporate successor
to all or substantially all of the Adviser's business or to a
wholly-owned subsidiary of such corporate successor which does
not result in a change of actual management or control of the
Adviser's business shall not be deemed to be an assignment for
the purposes of this Agreement. Any notice under this Agreement
shall be given in writing, addressed and delivered or mailed
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postpaid, to the other party at any office of such party and
shall be deemed given when received by the addressee.
As used in this Section 10, the terms "assignment,"
"interested persons", and "a vote of a majority of the
outstanding voting securities" shall have the respective meanings
set forth in Section 2(a)(4), Section 2(a)(19) and Section
2(a)(42) of the 1940 Act.
11. Amendment of Agreement. This Agreement may be
amended by mutual consent, but the consent of the Fund must be
approved (a) by vote of a majority of those members of the Board
of Directors of the Fund 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 amendment, and (b) by
vote of a majority of the outstanding voting securities of the
Portfolio.
12. Severability. If any provisions of this Agreement
shall be held or made invalid by a court decision, statute, rule
or otherwise, the remainder of this Agreement shall not be
affected thereby.
13. Applicable Law. This Agreement shall be construed
in accordance with the laws of the State of New York, provided,
however, that nothing herein shall be construed as being incon-
sistent with the 1940 Act.
14. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an
original.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers thereunto duly
authorized as of the day and year first written above.
XXXXXX XXXXXXX ASSET PCS CASH FUND, INC.
MANAGEMENT INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxx Xxxxxx X. Xxxxx
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