Exhibit 5
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
AMENDED AND RE-STATED AGREEMENT made this 22nd day of May 2000, by and
between American Federation of Labor and Congress of Industrial Organizations
Housing Investment Trust. a trust formed under the laws of the District of
Columbia (the "Trust"), and Wellington Management Company, LLP, a Massachusetts
limited liability partnership (the Investment Adviser").
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the " 1940 Act");
WHEREAS, the Trust desires to retain the Investment Adviser to render
investment advisory services. as described herein, to the Trust, and the
Investment Adviser is willing to render such services.
WHEREAS, the Trust and the Investment Adviser entered into an Investment
Advisory Agreement dated May 21, 1992, as amended and restated as of May 21,
1997; and,
WHEREAS, the Trust and the Investment Adviser have determined it advisable
to further amend and restate that Agreement.
NOW, THEREFORE, in consideration of mutual covenants herein contained, the
parties hereto agree as follows:
1. Duties and Representations of the Investment Adviser.
a) Investment Advisory Services.
The following services shall be provided with respect to the Trust assets
that the Trust designates from time to time as being subject to this Agreement
(the "Short/Intermediate-Term Assets"). which may include the types of
securities
listed on Schedule A to this Agreement. The Investment Adviser shall manage the
investment and reinvestment of the Short/ Intermediate-Term Assets; continuously
review, supervise, and administer the investment program of the Trust with
respect to the Short/Intermediate Term Assets; determine in its discretion the
Short/Intermediate-Term Assets to be purchased, retained and sold (and implement
those decisions); render regular reports as required to the Trust's officers and
Trustees concerning the Investment Adviser's discharge of the foregoing
responsibilities, including causing to be provided to the Trusts officers within
two business days after each Valuation Date, as defined in the Trust's
prospectus, market prices as of the Valuation Date of Short/Intermediate-Term
Assets that mature more than 60 days after the Valuation Date; develop and
produce portfolio analysis reports, including reports which may assist the Trust
in determining the allocation of assets within this portfolio, monitor portfolio
investment characteristics; analyze portfolio performance and provide to the
Trust's officers within ten business days after each calendar month end a report
regarding such performance for such month; provide analysis on markets and
instruments; provide investment overview and economic outlook forecasts; provide
information and comment on various relevant regulatory and legal issues; attend
meetings of the Trusts Executive Committee and Trustees as reasonably requested-
and supply the Trust's officers and Trustees with all statistical information
and reports reasonably required by them, including, without limitation, all
information required under Section 15(c) of the 1940 Act. The Investment
Adviser
shall have no authority or responsibility with respect to any assets of the
Trust other than the Short/intermediate-Term Assets.
b) Discharge of Investment Adviser's Duties.
The Investment Adviser shall discharge the responsibilities set forth in
Section I (a) subject to the Oversight of the officers and Trustees of the
Trust and in compliance with such policies as the Trustees may from time to
time establish, and in compliance with the objectives, policies, and
limitations of the Trust set forth in the Trust's prospectus, statement of
additional information and declaration of trust, in each case as amended from
time to time, and with the Investment Company Act of 1940, as amended. the
Investment Advisers Act of 1940, as amended, and any other applicable laws and
regulations. The Investment Adviser agrees, at its own expense, to render the
services described herein and to provide the office space, furnishings and
equipment, and personnel required by it to perform those services on the terms
and for the compensation provided herein.
c) Representations at the Investment Adviser.
The Investment Adviser represents and warrants that (i) it is duly
registered as an investment adviser with the Securities and Exchange
Commission pursuant to the Investment Advisers Act of 1940, as amended and
(ii) it does not currently have an affiliated broker/ dealer that is active in
the securities business. Failure of these representations and warranties shall
give the Trust the right to immediately terminate this Agreement.
d) Portfolio Transactions.
The Investment Adviser is authorized to arrange for the execution of the
Trust's portfolio transactions by selecting the brokers or dealers that will
execute the purchases and sales of portfolio securities for the Trust and is
directed to use its best efforts to obtain the best net results, taking into
account such factors as price (including the applicable brokerage commission
or dealer spread), size of order, difficulty of execution and operational
facilities of the firm involved. The Investment Adviser may, in its
discretion, purchase and sell portfolio securities through brokers who provide
the Investment Adviser or the Trust with research, analysis, advice and
similar services, and the Investment Adviser may pay to these brokers, in
return for research and analysis, a higher commission than may be charged by
other brokers, provided that the Investment Adviser determines in good faith
that such commission is reasonable in terms either of that particular
transaction or of the overall responsibility of the Investment Adviser, that
the total commission paid by the Trust will be reasonable in relation to the
benefits to the Trust over the long-term, and that the total commission paid
by the Trust is consistent with commissions paid in comparable transactions.
On occasions when the Investment Adviser deems the purchase or sale of a
security to be in the best interest of the Trust as well as other clients, the
Investment Adviser, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to. aggregate the
securities to be so purchased or sold in order to obtain the most favorable
price or lower brokerage commissions and efficient execution. In such event,
allocation of the securities so purchased or sold, as well as the expenses
incurred in the transaction will be made by the Investment Adviser in the
manner it considers to be the most equitable and consistent with its fiduciary
obligations.
2. Compensation of the Investment Adviser.
a) Investment Advisory Fee.
For the investment advisory services rendered by the Investment Adviser
as provided in Section I (a) of this Agreement, the Trust shall pay to the
Investment Adviser a quarterly investment advisory fee at the annual rate of
0.125% of the market value of the Short /Intermediate-Term Assets up to $100
million. and 0.10% of the market value of the Short/Intermediate-Term Assets
thereafter, in each case based on the average monthly market value; provided
that the annual fee shall in no event be less than $50,000. The investment
advisory fee shall be paid as promptly as possible after the last day of each
calendar quarter. Unless otherwise directed by the Trusts Board of Trustees or
a Trust officer, the Investment Adviser shall not sell or otherwise liquidate
the Short/Intermediate-Term Assets for the purpose of being paid its
investment advisory fee.
b) Method of Payment.
The first payment of the investment advisory fee shall be made as
promptly as possible after the last day of the calendar quarter in which the
effective date of this Agreement falls, and shall constitute a full payment of
the fee due the Investment Adviser for all services rendered pursuant to this
Agreement prior to that date. In the event that the Investment Advisor's`
right to such fee commences to accrue on a date other than the first day of
the quarter, the investment advisory fee shall be computed on the basis of the
period beginning on the first business day on which this Agreement is in
effect, subject to a pro rats adjustment based on the number of days in that
period as a percentage of the total number of days in such a period. In the
event of termination of this Agreement. the investment advisory fee shall be
computed on the basis of the period ending on the last business day on which
this Agreement is in effect, subject to a pro rata adjustment based on the
number of days elapsed in the current calendar quarter as a percentage of the
total number of days in such quarter. The market value of the
Sbort/Intermediate-Term Assets shall in all cases be based only on those days
when the New York Stock Exchange is open for business, and shall be computed
as of the time of the regular close of business of the New York Stock
Exchange, or such other time as may be determined by the Trust's Board of
Trustees. Each fee payment to the Investment Adviser shall be accompanied by a
report of the Trust which shall show the amount properly payable to the
Investment Adviser under this Agreement and the detailed computation thereof.
3. Reports
The Trust and the Investment Adviser agree to furnish to each other, if
applicable, current prospectuses, statements of additional information,
registration statements, proxy statements, reports to shareholders and
certified copies of their financial statements, and, as each may reasonably
reques4 such other information with regard to their affairs.
4. Status of the investment Adviser and the Trust
The services of the Investment Adviser to the Trust are not to be deemed
exclusive, and the Investment Adviser shall be free to render similar services
to others so long as, its services to the Trust are not impaired thereby. The
Investment Adviser shall be deemed to be an independent contractor and shall
have no authority to act for or represent the Trust in any way or otherwise be
deemed to be an agent of the Trust, except in performing its duties and
responsibilities under this Agreement. Nothing in this Agreement shall limit
or restrict the right of any partner, Trustee, officer or employee of the
Investment Adviser of the Trust to engage in any other business or to devote
his or her time and attention in part to the management or other aspects of
any other business, whether of a similar nature or a dissimilar nature.
Nothing in this Agreement shall limit or restrict the right of the Trust to
retain other investment advisers.
5. Certain Records.
Any records required to be maintained and preserved pursuant to the
provisions of Rule 3 1 a- I and Rule3 1 a-2 promulgated under the 1940 Act
which are prepared or maintained by the Investment Adviser on behalf of the
Trust are property of the Trust and will be surrendered promptly to the Trust
on request-
6. Liability of the Investment Adviser.
The Investment Adviser shall not be liable for any error of judgement or for
any loss suffered by the Trust in connection with performance of its obligations
under this Agreement, except a loss resulting from willful misfeasance, bad
faith or gross negligence on its part in the performance of, or from reckless
disregard by it of its obligations and duties under. this Agreement, or damages
resulting from a breach of fiduciary duty with respect to receipt of
compensation for services or another breach of this Agreement.
7. Indemnification.
The Trust will indemnify the Investment Adviser for all liabilities and
reasonable expenses, including reasonable attorneys fees, in connection with
any litigation pertaining to the period prior to the Investment Advisers
relationship with the Trust under the Investment Advisory Agreement dated May
21, 1992, other than liabilities resulting from willful misfeasance, bad faith
or gross negligence on the part of the Investment Adviser provided, however,
that the Trust shall have the right to defend such litigation and to retain
counsel that is reasonably acceptable to the Investment Adviser.
8. Permissible Interests.
Partners, officers and agents of the Investment Adviser are or may be
interested in the Trust as Trustees, officers, shareholders or otherwise; and
the Investment Adviser (or any successor thereof) is or may be interested in
the Trust as a shareholder or otherwise.
9. Duration and Termination.
Unless sooner terminated as provided herein, this Agreement shall
continue for one year following the date first set forth above, and thereafter
for periods of one year so long as such continuance thereafter is specifically
approved at least annually by the vote of a majority of the Trustees of the
Trust, including a majority of the Trustees who are not parties to this
Agreement or interested persons of the Investment Adviser or any principal
underwriter of the Trust, cast in person at a meeting called for the purpose
of voting on such approval or by the vote of a majority of the outstanding
voting securities of the Trust. The foregoing requirement that continuance of
this Agreement be "specifically approved at least annually" shall be construed
in a manner consistent with the 1940 Act and the rules and regulations
thereunder. This Agreement may be terminated at any time without the payment
of any penalty by the vote of a majority of the Trustees of the Trust or by
the vote of a majority of the outstanding voting securities of the Trust on 60
days' written notice to the Investment Adviser or by the Investment Adviser at
any time without the payment of any penalty on 90 days written notice to the
Trust. This Agreement will automatically and immediately terminate in the
event of its assignment. Any notice under this Agreement shall be given in
writing, addressed and delivered, or mailed postpaid, to the other party at
any office or such party. As used in Section 10, the terms "assignment,"
"interested person," and "vote of a majority of the outstanding voting
securities" shall have the respective meanings set forth in the 1940 Act and
the rules and regulations thereunder, subject to such exceptions as may be
granted by the Securities and Exchange Commission under the 1940 Act.
10. Amendment; Waiver.
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 until approved
by the vote of the majority of the outstanding voting securities of the Trust
if such approval is required by the 1940 Act, the -rules thereunder, or
interpretations thereof by the Securities and Exchange Commission.
11. Claims Against the Trust.
It is understood and expressly stipulated that none of the Trustees or
participants of the Trust shall be personally liable hereunder. Neither the
Trustees, officers, agents nor participants of the Trust assume any personal
liability for obligations entered into on behalf of the Trust. All persons
dealing with the Trust must look solely to the property of the Trust for the
enforcement of any claim against the Trust.
12. Governing Law; Severability; Counterparts.
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts. 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
may be executed in any number of counterparts, each of which shall be deemed
to be an original, but such counterparts shall. together. constitute only one
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day and year first written above.
AMERICAN FEDERATION OF LABOR AND CONGRESS OF
INDUSTRIAL ORGANIZATIONS HOUSING INVESTMENT
TRUST
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Xxxxx X. Xxxxxxxx
Executive Vice President
Finance and Administration
WELLINGTON MANAGEMENT COMPANY, LLP
By:/s/ Xxxxxxxx Xxxxxx
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Xxxxxxxx Xxxxxx
Head of Institutional Investments
SCHEDULE A
The Investment Adviser may invest in the following types of securities,
and such other types of securities that the Trust's Board of Trustees
may authorize from time to time upon giving written notice to the
Investment Adviser, consistent with the Trust's Registration Statement.
The duration of any security in the Short/Intermediate Term Assets shall
not exceed 24 months.
1. United States Treasury issues;
2. Federal agency issues;
3. Commercial bank time certificates of deposit of banks whose
accounts are insured by the Federal Deposit Insurance
Corporation through its Bank Insurance Fund ("BIF");
4. Savings bank deposits insured by the Federal Deposit
Insurance Corporation through BIF;
5. Savings and loan association deposits insured by the Federal
Deposit Insurance Corporation through its Savings Association
Insurance Fund;
6. Bankers acceptances;
7. Commercial paper rated as category A-1 or P-1 by Standard &
Poor's Corporation ("S&P") or Xxxxx'x Investors Service, Inc.
("Moody's");
8. Collateral loans (not including warehousing agreements)
secured by Federal Housing Administration or Veterans
Administration guaranteed single-family or multi-family
mortgages;
9. Interests (including repurchase agreements) in United States
Government securities pledged by a bank or other borrower to
secure short-term loans from the Trust; and
10. Securities issued by an investment company registered under
the Investment Company Act of 1940, as amended, that invests
predominantly in United States Treasury issues or Federal
agency issues.
