Exhibit (d)(v)
INVESTMENT ADVISORY AGREEMENT FOR THE FROLEY, REVY
CONVERTIBLE SECURITIES FUND
This Agreement, dated as of the 30th day of September, 2002, made by
and between Trainer Xxxxxxx Funds, a business trust (the "Trust") operating as
an open-end, management investment company registered under the Investment
Company Act of 1940, as amended (the "Act"), on behalf of Froley, Revy
Convertible Securities Fund (the "Series") and Froley, Revy Investment Company,
Inc., a wholly-owned subsidiary of First Republic Bank, with its principal
offices at 00000 Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx (the
"Investment Advisor").
WHEREAS, the Trust is registered as an open-end, management investment
company under the Act; and
WHEREAS, the Trust desires to retain the Investment Advisor to furnish
investment advisory services with respect to the Series, and the Investment
Advisor is willing to so furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties as follows:
1. Appointment. The Trust hereby appoints the Investment Advisor to act as
investment advisor to the Series for the period and on the terms set forth in
this Agreement. The Investment Advisor accepts such appointment and agrees to
furnish the services herein set forth for the compensation herein provided.
2. Delivery of Documents. The Series has furnished the Investment Advisor
with copies of each of the following:
(a) Resolutions of the Board of Trustees authorizing the appointment
of the Investment Advisor and approving this Agreement;
(b) The Series' most recent prospectus and Statement of Additional
Information (such prospectus and Statement of Additional Information, as
presently in effect and all amendments and supplements thereto, are herein
called the "Prospectus").
The Series will furnish the Investment Advisor from time to time with
copies of all amendments of or supplements to the foregoing.
3. Management. Subject to the supervision of the Board of Trustees, the
Investment Advisor will provide a continuous investment program for the Series,
including investment research and day-to-day management of the Series' assets.
The Investment Advisor will determine from time to time what securities and
other investments will be purchased, retained or sold by the Series. The
Investment Advisor will provide the services under this Agreement in
accordance with the Series' investment objectives, policies and restrictions as
stated in the Prospectus and resolutions of the Board of Trustees. The Series
wishes to be informed of important developments materially affecting the Series
and its shareholders, and the Investment Advisor agrees to furnish to the
Series, from time to time, such information as may be appropriate for this
purpose. The Investment Advisor further agrees that it:
(a) will conform with all applicable Rules and Regulations of the
Securities and Exchange Commission;
(b) will place orders pursuant to its investment determinations for the
Series either directly with the issuer or with any broker or dealer. In
executing portfolio transactions, the Investment Advisor will use its best
efforts to seek on behalf of the Series the best overall terms available. In
assessing the best overall terms available for any transaction, the Investment
Advisor shall consider all factors that it deems relevant, including the 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 the commission, if any, both for the specific transaction and
on a continuing basis. In evaluating the best overall terms available, and in
selecting the broker-dealer to execute a particular transaction, the Investment
Advisor may also 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 Series and any other accounts over which the Investment Advisor exercises
investment discretion. The Investment Advisor is authorized, subject to the
prior approval of the Board of Trustees, to pay a broker or dealer who provides
such brokerage and research services a commission for executing a portfolio
transaction for the Series which is in excess of the amount of commission
another broker or dealer would have charged for effecting that transaction in
such instances where the Investment Advisor determines in good faith that such
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer as viewed in terms of that particular
transaction or in terms of the overall responsibilities of the Investment
Advisor to the Series. In addition, the Investment Advisor may take into account
the sale of the Series' units in allocating purchase and sale orders for
portfolio securities to brokers or dealers (including affiliated brokers and
dealers that are affiliated with the Series, the Investment Advisor or the
principal underwriter), provided that the Investment Advisor believes that the
quality of execution and the commission are comparable to what they would be by
other qualified firms. In no instance, however, will portfolio securities be
purchased from or sold to the Investment Advisor or the principal underwriter or
any affiliated person of either the Series, the Investment Advisor or the
principal underwriter or any affiliated person of the Series, the Investment
Advisor or the principal underwriter, acting as principal in the transaction
except to the extent permitted by the Securities and Exchange Commission and the
National Association of Securities Dealers, Inc.;
(c) will maintain all books and records with respect to the Series'
securities transactions which the Series is required to maintain under
applicable laws and will furnish the Board of Trustees such periodic and special
reports as the Board may request; and
(d) will treat confidentially and as proprietary information of the Series
all records and other information relative to the Series and prior, present or
potential shareholders, and will not use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except after prior notification to, and approval in writing by, the Board of
Trustees, which approval shall not be unreasonably withheld and may not be
withheld where the Investment Advisor may be exposed to civil or criminal
contempt proceeds for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by the Board
of Trustees.
4. Services Not Exclusive. The investment management services furnished by
the Investment Advisor hereunder are not to be deemed exclusive, and the
Investment Advisor shall be free to furnish similar services to others whether
or not for compensation so long as its services under this Agreement are not
impaired thereby.
5. Books and Records. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Investment Advisor hereby agrees that all records which
it maintains for the Series are the property of the Series and further agrees to
surrender promptly to the Series any of such records upon the Series' request.
The Investment Advisor further agrees to preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act the records required by Rule 31a-1 to be
maintained under the 1940 Act.
6. Expenses. During the term of this Agreement, the Investment Advisor
will pay all expenses incurred by it in connection with its activities under
this Agreement other than the cost of securities (including brokerage
commissions, if any) purchased for the Series.
7. Compensation. For the services provided and the expenses assumed
pursuant to this Agreement, effective as of the date of the effectiveness of
this Agreement, the Series will pay the Investment Advisor and the Investment
Advisor will accept as full compensation therefor a fee, accrued daily and paid
monthly, at an annual rate of 0.625% of the daily net asset value of the Series.
8. Limitation of Liability. The Investment Advisor shall not be liable for
any error of judgment or mistake of law or for any loss suffered by the Series
in connection with the performance of this Agreement, except a loss resulting
from a breach of fiduciary duty with respect to the receipt of compensation for
services or a loss resulting from willful misfeasance, bad faith or gross
negligence on the part of the Investment Advisor in the performance of its
duties or from reckless disregard by it of its obligations and duties under this
Agreement.
9. Duration and Termination. This Agreement will become effective at such
time as shall have been approved by the shareholders of the Series, in
accordance with the requirements under the 1940 Act, and, unless sooner
terminated as provided herein, shall continue in effect for two years, and
thereafter for successive periods of twelve months, provided such continuance is
specifically approved at least annually (a) by the vote of a majority of those
members of the Board of Trustees who are not parties to this Agreement or
interested persons of any party to this Agreement, cast in person at a meeting
called for the purpose of voting on such approval, and (b)
by the Board of Trustees or by vote of a majority of the outstanding voting
securities of the Series. Notwithstanding, the foregoing, this Agreement may be
terminated at any time, without the payment of any penalty, by the Series (by
vote of the Board of Trustees or by vote of a majority of the outstanding voting
securities of the Series) on sixty days' written notice or by the Investment
Advisor on ninety days' written notice. This Agreement will immediately
terminate in the event of its assignment. (As used in this Agreement, the terms
"majority of the outstanding voting securities," "interested persons" and
"assignment" shall have the same meaning of such terms in the Act).
10. Amendment of this Agreement. No provision 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. No amendment of this Agreement shall be
effective until approved by vote of a majority of the outstanding voting
securities of the Series.
11. 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. If any
provision 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. This Agreement shall be binding upon and shall insure to the
benefit of the parties hereto and their respective successors and shall be
governed by Delaware law.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
Trainer Xxxxxxx Funds, on behalf of
Froley, Revy Convertible Securities Fund
By: /s/ Xxxxxx Xxxxxxxx-Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx-Xxxxx
-----------------------------------
Title: Chief Administrative Officer
----------------------------------
Froley, Revy Investment Company, Inc.
By: /s/ Xxxxxx Xxxx X'Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxx X'Xxxxxxx
-----------------------------------
Title: President, Chief Executive Officer
----------------------------------
