FIRST EAGLE TRUST
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
Agreement, originally entered into February 27, 1998 and amended and
restated as of December 10, 2002, between FIRST EAGLE TRUST, a Delaware business
trust (the "Trust"), and XXXXXXX AND X. XXXXXXXXXXXX ADVISERS, INC., a
registered investment adviser organized under the laws of the State of Delaware
(the "Adviser"),
WITNESSETH:
WHEREAS, the Trust is a non-diversified, open-end management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"), and its shares of beneficial interest ("Shares") are registered
under the Securities Act of 1933;
WHEREAS, the Trust is authorized to issue Shares in Series and as of
the date hereof, has issued one Series designated as the First Eagle Fund of
America (individually the "Fund" and collectively with any subsequently formed
Series the "Funds"); and
WHEREAS, the Trust has retained the Adviser to render investment
advisory services to the Trust pursuant to an Investment Advisory Agreement, and
the Trust and the Adviser desire to amend and restate that Agreement as follows;
NOW, THEREFORE, the parties agree as follows:
1. The Trust hereby appoints the Adviser to act as investment adviser
to the Trust and the initial Funds, and any other Funds as agreed upon by the
Adviser and Trust, for the period and on the terms set forth in this Agreement.
The Adviser accepts such appointment and agrees to render the services herein
described, for the compensation herein provided.
2. Subject to the supervision of the Board of Trustees of the Trust,
the Adviser shall manage the investment operations of the Trust and the Funds
and the composition of the Funds' portfolios, including the purchase, retention
and disposition thereof, in accordance with the Funds' investment objectives,
policies and restrictions as stated in the Prospectus and Statement of
Additional Information of the Trust and subject to the following understandings:
(a) The Adviser shall provide supervision of the Funds' investments and
determine from time to time what investments, securities or commodity
futures contracts and options thereon ("futures") will be purchased,
retained, sold or loaned by the Funds, and what portion of the assets will
be invested or held uninvested as cash.
(b) The Adviser shall use its best judgment in the performance of its
duties under this Agreement.
(c) The Adviser, in the performance of its duties and obligations under
this Agreement, shall act in conformity with the Agreement and Declaration
of Trust, By-Laws, Prospectus and Statement of Additional Information of
the Trust and with the instructions and directions of the Board of Trustees
of the Trust and will conform to and
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comply with the requirements of the 1940 Act and all other applicable
federal and state laws and regulations.
(d) The Adviser shall determine the securities and futures to be
purchased or sold by the Funds and will place orders pursuant to its
determinations with or through such persons, brokers, dealers or futures
commission merchants (including Xxxxxxx and S. Bleichroeder, Inc., an
affiliate of the Adviser) in conformity with the policy with respect to
brokerage as set forth in the Trust's Prospectus and Statement of
Additional Information or as the Board of Trustees may direct from time to
time. In providing the Trust and the Funds with investment management, it
is recognized that the Adviser will give primary consideration to securing
most favorable prices and efficient executions. Consistent with this
policy, the Adviser may consider the financial responsibility, research and
investment information and other services provided by brokers, dealers or
futures commission merchants who may effect or be a party to any such
transaction or other transactions to which other clients of the Adviser may
be a party. It is understood that neither the Trust nor the Adviser has
adopted a formula for allocation of the Funds' investment business. It is
also understood that it is desirable for the Trust and the Funds that the
Adviser have access to supplemental investment and market research and
security and economic analysis provided by brokers or futures commission
merchants who may execute brokerage transactions at a higher cost to the
Trust and the Funds than may result when allocating brokerage to other
brokers or futures commission merchants on the basis of seeking the most
favorable prices and efficient executions. Therefore, the Adviser is
authorized to place orders for the purchase and sale of securities or
futures for the Trust and the Funds with such brokers or futures commission
merchants, subject to review by the Trust's Board of Trustees, from time to
time, with respect to the extent and continuation of this practice. It is
understood that the services provided by such brokers or futures commission
merchants may be useful to the Adviser in connection with its services to
other clients.
On occasions when the Adviser deems the purchase or sale of a security
or a futures contract to be in the best interest of the Trust and the Funds
as well as other clients, the Adviser, to the extent permitted by
applicable laws and regulations, may, but shall be under no obligation to,
aggregate the securities or futures contract to be so sold or purchased in
order to obtain the most favorable price or lower brokerage commissions and
efficient execution. In such event, allocation of the securities or futures
contract so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Adviser in the manner it considers to be
the most equitable and consistent with its fiduciary obligations to the
Trust and the Funds and to such other clients.
(e) The Adviser shall maintain all books and records with respect to
the Trust and the Funds' portfolio transactions that the Trust is required
to keep under Rule 31a-1 under the 1940 Act.
(f) The Adviser shall provide the Trust's Custodian and the Trust on
each business day with information relating to all transactions concerning
the Funds' assets.
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(g) The investment management services provided by the Adviser
hereunder are not to be deemed exclusive, and the Adviser shall be free to
render similar services to others.
3. The Trust has delivered to the Adviser copies of each of the
following documents and will deliver to it all future amendments and
supplements, if any:
(a) The Agreement and Declaration of Trust filed with the State of
Delaware (such Agreement and Declaration of Trust, as in effect on the date
hereof and as amended from time to time, is herein called the "Agreement
and Declaration of Trust");
(b) The By-Laws of the Trust (such By-Laws, as in effect on the date
hereof and as amended from time to time, are herein called the "By-Laws");
(c) Certified resolutions of the Board of Trustees of the Trust
authorizing the appointment of the Adviser and approving the form of this
Agreement;
(d) The Registration Statement under the 1940 Act and the Securities
Act of 1933, as amended, on Form N-1A (the "Registration Statement"), as
filed with the Securities and Exchange Commission (the "Commission")
relating to the Trust and the Trust's Shares and all amendments thereto;
(e) The Trust's Notification of Registration of under the 1940 Act on
Form N-8A as filed with the Commission and all amendments thereto; and
(f) Prospectus and Statement of Additional Information of the Trust
(such Prospectus and Statement of Additional Information, as currently in
effect and as amended or supplemented, from time to time, being herein
called the "Prospectus").
4. The Adviser shall authorize and permit any of its directors,
officers and employees who may be elected as trustees or officers of the Trust
to serve in the capacities in which they are elected. Services to be furnished
by the Adviser under this Agreement may be furnished through the medium of any
of such directors, officers or employees.
5. The Adviser shall keep the Trust's books and records required to be
maintained by it pursuant to paragraph 2 hereof. The Adviser agrees that all
records which it maintains for the Trust are the property of the Trust and it
will surrender promptly to the Trust any of such records upon the Trust's
request. The Adviser further agrees to preserve for the periods prescribed by
Rule 31a-2 of the Commission under the 1940 Act any such records as are required
to be maintained by the Adviser pursuant to paragraph 2 hereof.
6. (a) For the services provided pursuant to this Agreement by the
Investment Adviser, the Trust will pay monthly an investment management fee at
the annual rate of 1.00% of the average daily net assets First Eagle Fund of
America and at the annual rate of 1.00% of the average daily net assets First
Eagle International Fund. Net assets of the Funds shall be computed on such days
and at such time or times as described in the Trust's then-current Prospectus
and Statement of Additional Information. Upon any termination of this Agreement
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before the end of any month, the fee for such part of a month shall be prorated
and shall be payable upon the date of termination of this Agreement.
(b) The Adviser will pay the compensation and expenses of all officers
of the Trust and will furnish, without expense to the Trust, the services of
such of the Adviser's officers and employees as may duly be elected officers or
directors of the Trust, subject to their individual consent to serve and to any
limitations imposed by law. The Adviser will pay the Trust's office rent and
ordinary office expenses and will provide investment, advisory, research and
statistical facilities and all clerical services relating to research,
statistical and investment work. (In this regard, and notwithstanding anything
in this Agreement to the contrary, it is understood that this Agreement does not
obligate the Adviser to pay for the maintenance of the Trust's general ledger
and securities cost ledger or for daily pricing of the Trust's securities, but
that it does obligate the Adviser, without expense to the Trust, to oversee the
provision of such services by the Trust's agent.) The Adviser will not be
required hereunder to pay any expenses of the Trust other than those above
enumerated in this paragraph 6(b). In particular, but without limiting the
generality of the foregoing, the Adviser will not be required to pay hereunder:
brokers' commissions; legal or auditing expenses; taxes or governmental fees;
any direct expenses of issue, sale, underwriting, distribution, redemption or
repurchase of the Trust's securities; the expenses of registering or qualifying
securities for sale; the cost of preparing and distributing reports and notices
to stockholders; the fees or disbursements of dividend, disbursing, shareholder,
transfer or other agent; or the fees or disbursements of custodians of the
Trust's assets.
7. The Adviser shall not be liable for any error of judgment or for any
loss suffered by the Trust or the Funds in connection with the matters to which
this Agreement relates, except a loss resulting from 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 0000 Xxx) or a loss resulting from willful misfeasance,
bad faith or gross negligence on its part in the performance of its duties or
from reckless disregard by it of its obligations and duties under this
Agreement.
8. This Agreement shall continue in effect for a period of more than
two years from the date hereof only so long as such continuance is specifically
approved at least annually in conformity with the requirements of the 1940 Act;
provided, however, that this Agreement may be terminated by the Trust at any
time, without the payment of any penalty, by the Board of Trustees of the Trust
or by vote of a majority of the outstanding voting securities (as defined in the
0000 Xxx) of the Trust, or by the Adviser at any time, without the payment of
any penalty, on not more than 60 days' nor less than 30 days' written notice to
the other party. This Agreement shall terminate automatically in the event of
its assignment (as defined in the 0000 Xxx) by the Adviser.
9. Nothing in this Agreement shall limit or restrict the right of any
of the Adviser's directors, officers, or employees who may also be a trustee,
officer or employee of the Trust to engage in any other business or to devote
time and attention in part to the management or other aspects of any business,
whether of a similar or a dissimilar nature, nor limit or restrict the Adviser's
right to engage in any other business or to render services of any kind to any
other corporation, firm, individual or association.
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10. Except as otherwise provided herein or authorized by the Board of
Trustees of the Trust, from time to time, the Adviser shall for all purposes
herein 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 an agent of the
Trust.
11. During the term of this Agreement, the Trust agrees to furnish the
Adviser at its principal office all prospectuses, proxy statements, reports to
Shareholders, sales literature, or other material prepared for distribution to
Shareholders of the Trust or the public, which refer to the Adviser in any way,
prior to use thereof and not to use such material if the Adviser reasonably
objects in writing within five business days (or such other time as may be
mutually agreed) after receipt thereof. In the event of termination of this
Agreement, the Trust will continue to furnish to the Adviser copies of any of
the above-mentioned materials which refer in any way to the Adviser. Sales
literature may be furnished to the Adviser hereunder by first class or overnight
mail, facsimile transmission equipment or hand delivery. The Trust shall furnish
or otherwise make available to the Adviser such other information relating to
the business affairs of the Trust as the Adviser at any time, or from time to
time, reasonably requests in order to discharge its obligations hereunder.
12. This Agreement constitutes the entire Agreement between the parties
with respect to the subject matter hereof. This Agreement may be amended by
mutual consent, but the consent of the Trust must be approved in conformity with
the requirements of the 1940 Act.
13. Any notice or other communication required to be given pursuant to
this Agreement shall be deemed duly given if delivered or mailed by registered
mail, postage prepaid, (1) to the Adviser at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000, Attention: President; or (2) to the Trust at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: President.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
15. The Trust may use the name "First Eagle" in connection with the
name of the Trust or any of the Funds or any name including Xxxxxxx and X.
Xxxxxxxxxxxx or any variant thereof, only for so long as this Agreement or any
extension, renewal or amendment hereof remain in effect, including any similar
agreement with any organization which shall have succeeded to the Adviser's
business as investment adviser, or the Distribution and Services Agreement
between the Trust and Xxxxxxx and S. Bleichroeder, Inc. (the "Distributor") or
any extension, renewal or amendment thereof, remains in effect, including any
similar agreement with any organization which shall have succeeded to the
Distributor's business as distributor. At such time as such Agreement shall no
longer be in effect, the Trust will (to the extent that it lawfully can) cease
to use such a name or any other name indicating that it is advised by, managed
by or otherwise connected with the Adviser, the Distributor or any organization
which shall have so succeeded to such businesses. In no event shall the Trust
use the name "Xxxxxxx and X. Xxxxxxxxxxxx" or any variant thereof if the
Adviser's or Distributor's functions are transferred or assigned to a company of
which Xxxxxxx and S. Bleichroeder, Inc. does not have control. In the event that
such Agreement shall no longer be in effect or the Adviser's or Distributor's
functions are transferred or assigned to a company of which Xxxxxxx and S.
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Bleichroeder, Inc. does not have control, the Trust shall use its best efforts
to legally change its name by filing the required documentation with appropriate
state and federal agencies.
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.
FIRST EAGLE TRUST
By:
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By:
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XXXXXXX AND S. BLEICHROEDER ADVISERS, INC.
By:
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By:
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