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AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
made this 1st day of November, 2004, by and between Xxxxxx Xxxxxxx
Institutional Fund Trust (the "Fund"), a business trust organized under the
laws of the Commonwealth of Pennsylvania, and Xxxxxx Xxxxxxx Investment
Management Inc., a Delaware corporation, as successor to Xxxxxx Xxxxxxxx &
Xxxxxxxx, LLP (the "Adviser").
RECITALS
WHEREAS, The Fund entered into an Investment Advisory Agreement to provide
investment advisory services with Xxxxxx Xxxxxxxx & Xxxxxxxx, LLP, effective
as of May 1, 1997, as amended (the "Current Investment Advisory Agreement");
and WHEREAS, This Agreement amends and restates, in its entirety, the
Current Investment Advisory Agreement to reduce the fee payable by certain
of the Fund's Portfolios under this Agreement;
AGREEMENTS
Now, Therefore, the Fund and the Adviser agree as follows:
1. Duties of Adviser. The Fund hereby appoints the Adviser to act as
investment adviser to each of the Portfolios listed on-Schedule A hereto
(the "Portfolios"), 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 Portfolios, to continuously review,
supervise and administer the investment program of each of the Portfolios,
to determine in its discretion the securities to be purchased or sold and
the portion of each 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 Trustees concerning the Adviser's discharge
of the foregoing responsibilities. The Adviser shall discharge the foregoing
responsibilities subject to the control of the officers and the Board of
Trustees 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
each of the Portfolios and is directed to use its best efforts to obtain
the best available price and most favorable execution, except as
prescribed herein. Subject to policies established by the Board of
Trustees 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 Fund. 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 Trustees of the
Fund such information relating to portfolio transactions as they may
reasonably request.
3. 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 at the end of each of the Fund's fiscal quarters, an advisory
fee calculated by applying a quarterly rate, based on the annual percentage
rates set forth opposite each Portfolio's name on Schedule A hereto,
to each Portfolio's average daily net assets for the quarter.
In the event of termination of this Agreement, the fee provided under
this Section 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 fiscal
quarter as a percentage of the total number of days in such quarter.
4. 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.
5. 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 their affairs as each may reasonably request.
6. 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 so long as its services to the Fund are not impaired
thereby.
7. 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 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 Investment
Company Act of 1940, as amended (the "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 law or any other act
or omission in the course of, or connected with, rendering services
hereunder including, without limitation, for any 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.
8. Permissible Interests. Subject to and in accordance with the Declaration
of Trust of the Fund and the Partnership Agreement (or other governing
or organizational documents) of the Adviser, Trustees, agents and
shareholders of the Fund are or may be interested in the Adviser
(or any successor thereof) as officers or partners, or otherwise;
officers, agents and partners of the Adviser are or may be interested
in the Fund as Trustees, officers, shareholders or otherwise; and the
Adviser (or any successor) is or may be interested in the Fund as a
shareholder or otherwise. The effect of any such interrelationships
shall be governed by said Declaration of Trust or Partnership Agreement
(or other governing or organizational documents) and provisions of
the 1940 Act.
9. Declaration of Trust. The Adviser is hereby expressly put on notice
of the limitation of shareholder liability as set forth in Article VIII
of the Declaration of Trust of the Fund and agrees that the obligations
assumed by the Fund pursuant to this Agreement shall be limited in all
cases to the Fund and its assets, and the Adviser shall not seek
satisfaction of any such obligation from the shareholders or any
shareholder of the Fund. Nor shall the Adviser seek satisfaction of any
such obligations from the Trustees or any individual Trustee.
10. Duration and Termination. This Agreement, unless sooner terminated
as provided herein, shall continue 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 Trustees 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 Trustees of the Fund or by vote of
a majority of the outstanding voting securities of each Portfolio of
the Fund; provided, however that if the holders of any 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
any Portfolio of the Fund at any time, without the payment of any penalty,
by vote of a majority of the entire Board of Trustees 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. Any notice under
this Agreement shall be given in writing, addressed and delivered or
mailed postpaid, to the other party at any office of such party.
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 a vote of
a majority of those members of the Board of Trustees 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 each Portfolio of the Fund.
12. Severability. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of this 1st day of November, 2004.
XXXXXX XXXXXXX INVESTMENT MANAGEMENT INC.
XXXXXX XXXXXXX INSTITUTIONAL FUND TRUST
By /s/ Xxxxxxxx X. Xxxxx
By/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
Title:
Executive Vice President
Schedule A
Portfolio
Contractual Rate of Advisory Fees
Advisory Foreign Fixed Income II Portfolio 0.375%
Advisory Foreign Fixed Income Portfolio 0.375%
Advisory Mortgage Portfolio 0.375%
Balanced Plus Portfolio 0.550%
Balanced Portfolio 0.450%
Core Plus Fixed Income Portfolio 0.375% of the portion of the
daily net assets not exceeding $1 billion; 0.30% of the portion of
the daily net assets exceeding $1 billion
Equity Portfolio 0.50% of the portion of the daily net assets
not exceeding $150 million; 0.45% of the portion of the daily net
assets exceeding $150 million but not exceeding $250 million; 0.40%
of the portion of the daily net assets exceeding $250 million but
not exceeding $350 million; 0.35% of the portion of the daily net
assets exceeding $350 million
Growth Portfolio 0.500%
High Yield Portfolio 0.45% of the portion of the daily net
assets not exceeding $1.5 billion; 0.40% of the portion of the
daily net assets exceeding $1.5 billion
Intermediate Duration Portfolio 0.375%
International Fixed Income Portfolio 0.375%
Investment Grade Credit Advisory Portfolio 0.375%
Investment Grade Fixed Income Portfolio 0.375%
Limited Duration Portfolio 0.300%
Mid Cap Growth Portfolio 0.500%
Mortgage Advisory Portfolio 0.375%
Municipal Portfolio 0.375%
New York Municipal Portfolio 0.375%
Targeted Duration Portfolio 0.375
U.S. Core Fixed Income Portfolio 0.375%
U.S. Mid Cap Value Portfolio 0.72% of the portion
of the daily net assets not exceeding $1 billion; 0.65% of the
portion of the daily net assets exceeding $1 billion
U.S. Small Cap Value Portfolio 0.67% of the portion of
the daily net assets not exceeding $500 million; 0.645% of the portion
of the daily net assets exceeding $500 million but not exceeding
$1 billion; 0.62% of the portion of the daily net assets exceeding
$1 billion
Value II Portfolio 0.50%
Value Portfolio 0.50% of the portion of the daily net
assets not exceeding $1 billion; 0.45% of the portion of the daily
net assets exceeding $1 billion but not exceeding $2 billion; 0.40%
of the portion of the daily net assets exceeding $2 billion but not
exceeding $3 billion; 0.35% of the portion of the daily net assets
exceeding $3 billion
