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Exhibit 5(a)
INVESTMENT ADVISORY AGREEMENT
BETWEEN
XXXXXXXX-KEY INVESTMENTS INC.
AND
XXXXXXXX-XXXXXXXX MUNICIPAL CUSTODIAN TRUST
THIS AGREEMENT is made as of the ____ day of _____, 199_, between McDonald Key
Investments Inc., Inc., an Ohio corporation (the "Adviser"), and
Xxxxxxxx-XxXxxxxx Municipal Custodian Trust, an Ohio business trust (the
"Trust").
In consideration of the mutual covenants hereinafter contained, the parties
hereto agree as follows:
1. a. The Trust hereby employs the Adviser to manage the investment and
reinvestment of the assets of the Xxxxxxxx-XxXxxxxx Ohio Tax-Free Income Fund
(the "Fund") of the Trust in accordance with the Fund's investment objective and
policies, and to perform certain other services herein set forth and administer
the Trust's affairs to the extent requested subject to the supervision of the
board of trustees of the Trust, for the period and on the terms herein set
forth.
b. The Adviser hereby accepts such employment, and agrees to render such
services and to assume the obligations herein set forth.
2. Should the Trust establish any additional series subsequent to the date
hereof and wish to retain the Adviser to serve as such series' investment
adviser under the terms of this Agreement, the Trust shall provide the Adviser
with a written notice to such effect which shall include the advisory fee
payable with respect to each such series. If the Adviser is willing to render
such services, it shall provide the Trust with a written notice to such effect,
whereupon each such series shall be included with Xxxxxxxx-XxXxxxxx Ohio
Tax-Free Income Fund in the term "Fund" hereunder.
3. The Adviser shall:
a. Manage the investment of the Fund's assets including the placing of orders
for purchases and sales and other investment transactions;
b. Report periodically to the Trust with respect to the Trust's investment
programs and with respect to the Adviser's activities in connection with the
administration of the Trust;
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c. In all matters relating to the performance of this Agreement, act in
conformity with the Declaration of Trust, By-Laws, and Registration Statement of
the Trust and with the instructions and directions of the Board of Trustees and
will comply with the requirements of the 1940 Act, the rules thereunder, and all
other applicable federal and state laws and regulations; and
d. Provide persons satisfactory to the Board of Trustees of the Trust to act
as officers of the Trust to the extent permissible under applicable federal
law.
4. Any investment program undertaken by the Adviser pursuant to this Agreement,
and any other activities undertaken by the Adviser on behalf of the Trust,
shall at all times be subject to any directives of the Board of Trustees of the
Trust, or of any duly constituted committee of the Board, or of any officer of
the Trust acting pursuant to authority granted by the Board or by any such
committee.
5. In addition to performing the obligations set forth in Paragraph 3 hereof,
the Adviser shall assume and bear expenses incurred with respect to the
following:
a. Trustees who are affiliated with the Adviser;
b. Officers affiliated with the Adviser who are necessary for the management,
operations, administration and investments of the Trust; and
c. The payment or assumption by the Adviser of any expense of the Trust or the
Fund that the Adviser is not required by this Agreement to pay or assume shall
not obligate the Adviser to pay or assume the same or any similar expense of the
Trust or Fund on any subsequent occasion.
6. All expenses not specifically assumed by the Adviser under this Agreement or
by another party pursuant to any other agreement which may be incurred in the
operation of the Trust will be borne by the Trust. These include:
a. Expenses incurred by the Trust for office space, office facilities, business
equipment and utilities (including communications expenses);
b. Costs of preparing, printing and mailing, and expenses incurred in
connection with furnishing of information and administrative assistance with
respect to the preparation of; registration statements and prospectuses,
including amendments and revisions thereto, and annual, semiannual and other
periodic reports furnished to shareholders of the Trust's Fund or to regulatory
authorities; and other documents required by regulatory authorities; and
notices and proxy solicitation materials furnished to shareholders of the
Trust's Fund;
c. Such distribution expenses or service fees as may be contemplated by an
effective plan pursuant to Rule 12b-1 under the 1940 Act, provided, however,
that any such
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payment by the Trust of distribution expenses shall be in the amounts, and in
accordance with the procedures, set forth in such plan;
d. Registration, filing and other fees in connection with requirements of
regulatory authorities;
e. Expenses of issue, sale, redemption and repurchase of shares of the Trust's
Fund;
f. Compensation of trustees of the Trust who are not affiliated with the
Adviser;
g. Compensation and expenses of any transfer agent, dividend disbursing agent,
registrar, custodian or depository appointed by the Trust;
h. Any costs, expenses or other relief asserted against the Trust or Fund for
violation of any law;
i. Charges and expenses of independent accountants retained by the Trust;
j. Brokers' commissions and issue or transfer taxes chargeable to the Trust in
connection with securities transactions to which the Trust or a Fund of the
Trust is a party;
k. Any extraordinary expenses (including fees and disbursements of counsel,
costs of actions, suits or proceedings to which the Trust is a party and the
expenses the Trust may incur as a result of its legal obligation to provide
indemnification to its officers, trustees, agents and shareholders) incurred by
the Trust or Fund;
l. Taxes and other fees payable by the Trust to federal, state, or other
governmental agencies;
m. Costs of share certificates representing shares of the Trust's Fund, if
provided for;
n. Legal and accounting fees and expenses in connection with the operations of
the Trust, including its organization and the registration or qualification of
its shares with federal or state regulatory authorities;
o. Expenses incurred in connection with shareholders' or trustees' meetings;
p. Fees and other expenses incurred by the Trust in connection with its
membership in any organization, and;
q. Costs of liability, errors and omissions and other insurance and fidelity
bond.
7. Expenses borne by the Trust pursuant to Paragraph 6 hereof and attributable
to a specific Fund of the Trust shall be allocated to that Fund. Expenses borne
by the Trust
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pursuant to Paragraph 6 hereof that are not specifically attributable to a Fund
shall be allocated to each Fund in a manner and on a basis determined in good
faith by the Adviser to be fair and equitable, subject to review by the Board
of Trustees of the Trust.
8. The Trust shall reimburse the Adviser for all costs (direct and indirect)
which are fairly allocable to services performed by the Adviser's employees
under this Agreement on behalf of the Trust, for which the Trust is responsible
including, without limitation, appropriate portions of employee salaries, office
space, benefits, and expenses. In the event of disagreement between the Trust
and the Adviser as to a fair basis for allocating such costs, such basis shall
be fixed by the independent public accountants for the Trust, and the parties
shall be bound thereby.
9. The services of the Adviser to the Trust are not to be deemed exclusive, and
the Adviser shall be free to render similar services to other persons so long
as the services to be rendered hereunder are not impaired thereby. Nothing in
this Agreement shall limit or restrict the right of any director, officer or
employee of the Adviser to engage in any other business or to devote his time
and attention in part to any other business.
10. The Adviser assumes no responsibility or obligation under this Agreement
other than to render in good faith the services provided for herein; provided
that nothing herein shall be deemed to protect or purport to protect the Adviser
against any liability to the Trust or its shareholders to which the Adviser
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties hereunder, or by reason of reckless
disregard of its obligations and duties hereunder. The Adviser shall not be
responsible or liable for any action or inaction of the Board of Trustees of the
Trust or any committee thereof.
11. In addition to all other charges and expenses to be paid hereunder, the
Trust shall pay to the Adviser compensation for its services and facilities
furnished hereunder, at an annual rate computed in accordance with the
appropriate portion of Schedule A attached hereto. The fee shall be computed and
accrued daily. The fee so computed and accrued during each calendar month shall
be paid to the Adviser on the first day of the next month. If this Agreement
becomes effective or terminates before the end of any month, the fee for the
period from the effective date to the end of the month or from the beginning of
such month to the date of termination, as the case may be, shall be prorated
according to the proportion which such period bears to the full month in which
such effectiveness or termination occurs.
12. The Adviser shall reimburse the Trust if and to the extent that expenses
borne by the Trust in any fiscal year exceed any expense limitation applicable
to a Fund of the Trust imposed by any regulatory authority (as such limitations
may be established from time to time). During any fiscal year, the Adviser shall
be bound, in calculating the amount of any such excess, by the most stringent
applicable requirements of any state in which the shares of the Trust's Funds
are qualified for sale. Such excess expenses, if any, shall be determined and
paid on a monthly basis, subject to annual adjustment so that the
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aggregate of reimbursements, if any, by the Adviser to the Trust for the fiscal
year are in the amount necessary to limit such expenses to the applicable
expense limitation.
13. Subject to compliance with the provisions of the 1940 Act and the duties
and conditions to which the Adviser is bound by Paragraph 3 of this Agreement,
the Trust hereby agrees that the Adviser may subcontract for the performance of
any of the services contemplated to be rendered by the Adviser hereunder.
14. It is mutually understood that trustees, officers, shareholders, employees
and agents of the Trust are or may be interested in the Adviser as directors,
officers, stockholders, employees, agents or in other capacities; that
directors, officers, stockholders, employees and agents of the Adviser are or
may be interested in the Trust as trustees, officers, shareholders, employees,
agents or in other capacities; that the Adviser may be interested in the Trust
as a shareholder or otherwise; and that the existence of any such dual interest
shall not affect the validity of this Agreement or of any transactions made
hereunder, except as may otherwise be provided in the Declaration of Trust of
the Trust or the Articles of Incorporation of the Adviser, or by any specific
provision of any applicable statute, rule or regulation.
15. This Agreement shall become effective as of the date first set forth above
and shall continue in for a two year period so long as it is approved by the
vote of a majority of the outstanding voting securities of the Fund as defined
in the 1940 Act, and in accordance with the exemption granted by the Securities
and Exchange Commission on providing for this Agreement to become effective
prior to the required vote of the shareholders of the Fund. Thereafter, it shall
continue in effect from year to year, provided such continuance is specifically
approved at least annually, at meetings called for the purpose of voting upon
such approvals, by the vote of a majority of the outstanding voting securities
of that Fund or by the vote of a majority of the Board of Trustees of the Trust,
and in either event by the vote cast in person of a majority of the trustees of
the Trust who are not interested persons (as defined in the 0000 Xxx) of either
party to this Agreement.
16. The Trust may at any time and without the payment of any penalty terminate
this Agreement as to a Fund upon 60 days' written notice to the Adviser, either
by action of the Board of Trustees of the Trust or by the vote of a majority of
the outstanding voting securities of that Fund, and the Adviser may at any time
and without the payment of any penalty terminate this Agreement upon 60 days'
written notice to the Trust. This Agreement shall automatically terminate in the
event of its assignment (within the meaning of the 0000 Xxx) by the Adviser,
unless such automatic termination shall be prevented by an order of exemption
from the Securities and Exchange Commission. Termination of this Agreement with
respect to any given Fund shall in no way affect the continued validity of this
Agreement or the performance thereunder with respect to any other Fund. This
Agreement may be assigned by the Adviser to Key Asset Management Inc. so long as
such assignment shall not constitute an assignment within the meaning of the
1940 Act.
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17. This Agreement may be amended at any time by the mutual consent of the
parties, provided that such consent on the part of Trust shall have been
approved, at meetings called for the purpose of voting upon such consent, by the
vote of a majority of the outstanding voting securities of the affected Fund,
and by the vote of a majority of the Board of Trustees of the Trust, including
the vote cast in person by a majority of the trustees of the Trust who are not
interested persons (as defined in the 0000 Xxx) of either party to this
Agreement.
18. The parties to this Agreement acknowledge that the Adviser has an exclusive
proprietary interest in the use of the names "Gradison" and "McDonald" and
further acknowledge that the Adviser has consented to the use of such names by
the Trust subject to withdrawal of such consent upon 30 days' written notice to
the Trust. The Trust agrees that the names "Gradison" and "McDonald" will be
used by it only in connection with the business of any open-end management
investment company; that such names will be used only in such forms, styles and
contexts as may be approved by the Adviser; and that the Trust will not do or
cause to be done any act or undertaking which has the effect of contesting,
challenging or in any way impairing the Adviser's right, title or interest in
or to such names. The Trust agrees that it will not represent that it has any
right, title or interest in such names, and that the Trust's use of such names
shall not create any right, title or interest in its favor therein. Within 30
days after the termination of this Agreement for any reason, or after the
written withdrawal of such consent of the Adviser (with or without cause and
within the Adviser' sole discretion) the Trust
a. will cease and desist from every use of the names "Gradison" and "McDonald"
and will deliver to the Adviser all prospectuses, sales literature and other
advertising materials bearing such names;
b. will cause its name to be changed so as to eliminate the word "Gradison" or
"McDonald" therefrom; and
c. will not at any time thereafter adopt or use any name, xxxx or other trade
designation which is confusingly similar to the names "Gradison" or "McDonald"
or likely to mislead the public.
19. Any notice required by or permitted to be given in connection with this
Agreement shall be in writing, addressed and delivered in person, or mailed
postage prepaid, to the addresses designated by the respective parties for the
receipt of such notice. Until further written notice, it is agreed that the
addresses of the Adviser and of the Trust, respectively, shall be:
XxXxxxxx-Key Investments Inc..
Attention: _____________
000 Xxxxxxxx Xxxxxx
0
Xxxxxxxxx, Xxxx 00000
Xxxxxxxx-XxXxxxxx Municipal Custodian Trust
Attention: Xxxxxxx X. Xxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Xxxxxxxx-XxXxxxxx Municipal Custodian Trust
Attention: Xxxxxxx X. Xxxxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
20. The shareholders, trustees, officers, employees and agents of the Trust
shall not personally be bound by or liable under this Agreement, nor shall
resort be had to their private property for the satisfaction of any obligation
or claim hereunder, as more fully provided under the terms of the Declaration of
Trust.
21. This Agreement shall be construed in accordance with the laws of the State
of Ohio. To the extent that the applicable laws of the State of Ohio conflict
with the applicable provisions of the 1940 Act, the latter shall control.
IN WITNESS WHEREOF, the parties have executed this Investment Advisory Agreement
as of the date first written above.
MCDONALD-Key Investments Inc.
By: _____________________
XXXXXXXX-XxXXXXXX MUNICIPAL CUSTODIAN TRUST
By: Xxxxxx X. Xxxxxx
Schedule A
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Investment Advisory Fee
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Series Fee
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Xxxxxxxx-XxXxxxxx Ohio .5 of 1% of the average daily
Tax-Free Income Fund net assets of the series
