TOWER MUTUAL FUNDS
INVESTMENT ADVISORY CONTRACT
This Contract is made between Hibernia National Bank, a national banking
association having its principal place of business in New Orleans, Louisiana and
which is a wholly owned subsidiary of Hibernia Corporation, a Louisiana
corporation (the "Adviser"), and Tower Mutual Funds, a Massachusetts business
trust having its principal place of business in Pittsburgh, Pennsylvania (the
"Trust").
WHEREAS, the Trust is an open-end management investment company as that
term is defined in the Investment Company Act of 1940 and is registered as
such with the Securities and Exchange Commission; and
WHEREAS, the Adviser is engaged in the business of rendering investment
advisory and management services.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as
follows:
1. The Trust hereby appoints Adviser as Investment Adviser for each of the
portfolios ("Funds") of the Trust on whose behalf the Trust executes an exhibit
to this Contract, and Adviser, by its execution of each such exhibit, accepts
the appointments. Subject to the direction of the Trustees of the Trust, Adviser
shall provide investment research and supervision of the investments of each of
the Funds and conduct a continuous program of investment evaluation and of
appropriate sale or other disposition and reinvestment of each Fund's assets.
2. Adviser, in its supervision of the investments of each of the Fund will
be guided by each of the Fund's fundamental investment policies and the
provisions and restrictions contained in the Declaration of Trust and By-Laws of
the Trust and as set forth in the Registration Statement and exhibits as may be
on file with the Securities and Exchange Commission.
3. The Trust shall pay or cause to be paid, on behalf of each Fund, all of
the Fund's expenses and the Fund's allocable share of Trust expenses, including
without limitation, the expenses of organizing the Trust and continuing its
existence; fees and expenses of officers and Trustees of the Trust; fees for
investment advisory services and administrative services; fees and expenses of
preparing and printing amendments to its Registration Statement under the
Securities Act of 1933 and the Investment Company Act of 1940; expenses of
registering and qualifying the Trust, the Funds and shares of the Funds
("Shares") under Federal and state laws and regulations; expenses of preparing,
printing and distributing prospectuses (and any amendments thereto) and sales
literature; expenses of registering, licensing, or other authorization of the
Trust as a broker-dealer and of its officers as agents and salesmen under
federal and state laws and regulations; interest expense, taxes, fees and
commissions of every kind; expenses of issue (including cost of Share
certificates), purchase, repurchase and redemption of Shares, including expenses
attributable to a program of periodic issue; charges and expenses of custodians,
transfer agents, dividend disbursing agents, shareholder servicing agents and
registrars; printing and mailing costs, auditing, accounting and legal expenses;
reports to shareholders and governmental officers and commissions; expenses of
meetings of Trustees and shareholders and proxy solicitations therefor;
insurance expenses; association membership dues; and such nonrecurring items as
may arise, including all losses and liabilities incurred in administering the
Trust and the Funds. The Trust will also pay each Fund's allocable share of such
extraordinary expenses as may arise, including expenses incurred in connection
with litigation, proceedings, and claims and the legal obligations of the Trust
to indemnify its officers and Trustees and agents with respect thereto.
4. The Trust, on behalf of each of the Funds shall pay to Adviser, for all
services rendered to such Fund by Adviser hereunder, the fees set forth in the
exhibits attached hereto.
5. The Adviser may from time to time and for such periods as it deems
appropriate reduce its compensation (and, if appropriate, assume expenses of one
or more of the Funds) to the extent that any Fund's expenses exceed such lower
expense limitation as the Adviser may, by notice to the Fund, voluntarily
declare to be effective.
6. This Contract shall begin for each Fund on the date that the Trust
executes an exhibit to this Contract relating to such Fund. This Contract shall
remain in effect for each Fund until the first meeting of Shareholders held
after the execution date of an exhibit relating to the respective Fund, and if
approved at such meeting by the shareholders of a particular Fund, shall
continue in effect for such Fund for two years from the date of its execution
and from year to year thereafter, subject to the provisions for termination and
all of the other terms and conditions hereof if: (a) such continuation shall be
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 Contract or interested persons of any such party (other than as Trustees
of the Trust) cast in person at a meeting called for that purpose; and (b)
Adviser shall not have notified the Trust in writing at least sixty (60) days
prior to the anniversary date of this Contract in any year thereafter that it
does not desire such continuation with respect to that Fund.
7. Notwithstanding any provision in this Contract, it may be terminated at
any time with respect to any Fund, without the payment of any penalty, by the
Trustees of the Trust or by a vote of the shareholders of that Fund on sixty
(60) days' written notice to Adviser.
8. This Contract may not be assigned by Adviser and shall automatically
terminate in the event of any assignment. Adviser may employ or contract with
such other person, persons, corporation or corporations at its own cost and
expense as it shall determine in order to assist it in carrying out this
Contract.
9. In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties under this Contract on the part of
Adviser, Adviser shall not be liable to the Trust or to any of the Funds or to
any shareholder for any act or omission in the course of or connected in any way
with rendering services or for any losses that may be sustained in the purchase,
holding or sale of any security.
10. (a) Subject to the conditions set forth below, the Trust agrees to
indemnify and hold harmless the Adviser and each person, if any, who controls
the Adviser within the meaning of Section 15 of the 1933 Act and Section 20 of
the Securities Exchange Act of 1934, as amended, against any and all loss,
liability, claim, damage and expense whatsoever, (including but not limited to
any and all expense whatsoever reasonably incurred in investigating, preparing
or defending against any litigation, commenced or threatened, or any claim
whatsoever) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (as from time to time amended and supplemented) or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make statements therein not misleading, unless such statement or
omission was made in reliance upon and conformity with written information
furnished to the Trust with respect to the Adviser by or on behalf of the
Adviser expressly for use in the Registration Statement or Prospectus, or any
amendment or supplement thereof.
If any action is brought against the Adviser or any controlling person
thereof in respect of which indemnity may be sought against the Trust pursuant
to the foregoing paragraph, the Adviser shall promptly notify the Trust in
writing of the institution of such action and the Trust shall assume the defense
of such action, including the employment of counsel selected by the Trust and
payment of expenses. The Adviser or any such controlling person thereof shall
have the right to employ separate counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of the Adviser or such
controlling person unless the employment of such counsel shall have been
authorized in writing by the Trust in connection with the defense of such action
or the Trust shall not have employed counsel to have charge of the defense of
such action, in any of which events such fees and expenses shall be borne by the
Trust. Anything in this paragraph to the contrary notwithstanding, the Trust
shall not be liable for any settlement of any such claim or action effected
without its written consent. The Trust agrees promptly to notify the Adviser of
the commencement of any litigation or proceedings against the Trust or any of
its officers or Trustees or controlling persons in connection with the issue and
sale of shares or in connection with such Registration Statement or Prospectus.
(b) The Adviser agrees to indemnify and hold harmless the Trust, each of its
Trustees, each of its officers who have signed the Registration Statement and
each other person, if any, who controls the Trust within the meaning of Section
15 of the 1933 Act, to the same extent as the foregoing indemnity from the Trust
to the Adviser but only with respect to statements or omissions, if any, made in
the Registration Statement or Prospectus or any amendment or supplement thereof
in reliance upon, and in conformity with, information furnished to the Trust
with respect to the Adviser by or on behalf of the Adviser expressly for use in
the Registration Statement or Prospectus or any amendment or supplement thereof.
In case any action shall be brought against the Trust or any other person so
indemnified based on the Registration Statement or Prospectus, or any amendment
or supplement thereof, and in respect of which indemnity may be sought against
the Adviser, the Adviser shall have the rights and duties given to the Trust,
and the Trust and each other person so indemnified shall have the rights and
duties given to the Adviser by the provisions of subsection (a) above.
(c) Nothing herein contained shall be deemed to protect any person against
liability to the Trust or its shareholders to which such person would otherwise
be subject by reason of willful misfeasance, bad faith or gross negligence in
the performance of the duties of such person or by reason of the reckless
disregard by such person of the obligations and duties of such person under this
Contract.
11. This Contract may be amended at any time by agreement of the parties
provided that the amendment shall be approved both by the vote of a majority of
the Trustees of the Trust, including a majority of Trustees who are not parties
to this Contract or interested persons of any such party to this Contract (other
than as Trustees of the Trust), cast in person at a meeting called for that
purpose, and on behalf of a Fund by a majority of the outstanding voting
securities of such Fund.
12. The Adviser acknowledges that all sales literature for investment
companies (such as the Trust) are subject to strict regulatory oversight. The
Adviser agrees to submit any proposed sales literature for the Trust (or any
Fund) or for itself or its affiliates which mentions the Trust (or any Fund) to
the Trust's distributor for review and filing with the appropriate regulatory
authorities prior to the public release of any such sales literature. The Trust
agrees to cause its distributors to promptly review all such sales literature to
ensure compliance with relevant requirements, to promptly advise Adviser of any
deficiencies contained in such sales literature, to promptly file complying
sales literature with the relevant authorities, and to cause such sales
literature to be distributed to prospective investors in the Trust.
13. Adviser is hereby expressly put on notice of the limitation of liability
as set forth in Article XI of the Declaration of Trust and agrees that the
obligations pursuant to this Contract of a particular Fund and of the Trust with
respect to that particular Fund be limited solely to the assets of that
particular Fund, and Adviser shall not seek satisfaction of any such obligation
from the assets of any other Fund, the shareholders of any Fund, the Trustees,
officers, employees or agents of the Trust, or any of them.
14. This Contract shall be construed in accordance with and governed by the
laws of the Commonwealth of Pennsylvania.
15. This Contract will become binding on the parties hereto upon their
execution of the attached exhibits to this Contract.
EXHIBIT A
TOWER CAPITAL APPRECIATION FUND
For all services rendered by Adviser hereunder, the Trust shall pay to
Adviser and Adviser agrees to accept as full compensation for all services
rendered hereunder, an annual investment advisory fee equal to .75 of 1% of the
average daily net assets of the Fund.
The fee shall be accrued daily at the rate of 1/365th of .75 of 1% applied
to the daily net assets of the Fund.
The advisory fee so accrued shall be paid to Adviser daily.
Witness the due execution hereof this 14th day of October, 1988.
Attest: HIBERNIA NATIONAL BANK
/S/ XXXXXX X. XXXX By:/S/ XXXXXX X. XXXXX, XX.
Secretary Executive Vice President
TOWER MUTUAL FUNDS
/S/ XXXXX X. XXXXXX By:/S/ J. XXXXXXXXXXX XXXXXXX
Secretary President
EXHIBIT B
TOWER CASH RESERVE FUND
For all services rendered by Adviser hereunder, the Trust shall pay to
Adviser and Adviser agrees to accept as full compensation for all services
rendered hereunder, an annual investment advisory fee equal to .40 of 1% of the
average daily net assets of the Fund.
The fee shall be accrued daily at the rate of 1/365th of .40 of 1% applied
to the daily net assets of the Fund.
The advisory fee so accrued shall be paid to Adviser daily.
Witness the due execution hereof this 14th day of October, 1988.
Attest: HIBERNIA NATIONAL BANK
/S/ XXXXXX X. XXXX By:/S/ XXXXXX X. XXXXX, XX.
Secretary Executive Vice President
TOWER MUTUAL FUNDS
/S/ XXXXX X. XXXXXX By:/S/ J. XXXXXXXXXXX XXXXXXX
Secretary President
EXHIBIT C
TOWER U.S. GOVERNMENT INCOME FUND
For all services rendered by Adviser hereunder, the Trust shall pay to
Adviser and Adviser agrees to accept as full compensation for all services
rendered hereunder, an annual investment advisory fee equal to .45 of 1% of the
average daily net assets of the Fund.
The fee shall be accrued daily at the rate of 1/365th of .45 of 1% applied
to the daily net assets of the Fund.
The advisory fee so accrued shall be paid to Adviser daily.
Witness the due execution hereof this 14th day of October, 1988.
Attest: HIBERNIA NATIONAL BANK
/S/ XXXXXX X. XXXX By:/S/ XXXXXX X. XXXXX, XX.
Secretary Executive Vice President
TOWER MUTUAL FUNDS
/S/ XXXXX X. XXXXXX By:/S/ J. XXXXXXXXXXX XXXXXXX
Secretary President
EXHIBIT D
TOWER LOUISIANA MUNICIPAL INCOME FUND
For all services rendered by Adviser hereunder, the Trust shall pay to
Adviser and Adviser agrees to accept as full compensation for all services
rendered hereunder, an annual investment advisory fee equal to .45 of 1% of the
average daily net assets of the Fund.
The fee shall be accrued daily at the rate of 1/365th of .45 of 1% applied
to the daily net assets of the Fund.
The advisory fee so accrued shall be paid to Adviser daily.
Witness the due execution hereof this 14th day of October, 1988.
Attest: HIBERNIA NATIONAL BANK
/S/ XXXXXX X. XXXX By:/S/ XXXXXX X. XXXXX, XX.
Secretary Executive Vice President
TOWER MUTUAL FUNDS
/S/ XXXXX X. XXXXXX By:/S/ J. XXXXXXXXXXX XXXXXXX
Secretary President
EXHIBIT E
TOWER TOTAL RETURN BOND FUND
For all services rendered by Adviser hereunder, the Trust shall pay to
Adviser and Adviser agrees to accept as full compensation for all services
rendered hereunder, an annual investment advisory fee equal to .70 of 1% of the
average daily net assets of the Fund.
The fee shall be accrued daily at the rate of 1/365th of .70 of 1% applied
to the daily net assets of the Fund.
The advisory fee so accrued shall be paid to Adviser daily.
Witness the due execution hereof this 15th day of September, 1992.
Attest: HIBERNIA NATIONAL BANK
/S/ XXXXXXXX X. XXXXXXXX By:/S/ XXXXXXX X. XXXXX
Assistant Secretary Senior Vice President
TOWER MUTUAL FUNDS
/S/ C. XXXXX XXXXXXXX By:/S/ XXXXXX X. XXXXXXXX
Secretary President
EXHIBIT F
TOWER U.S. TREASURY MONEY MARKET FUND
For all services rendered by Adviser hereunder, the Trust shall pay to
Adviser and Adviser agrees to accept as full compensation for all services
rendered hereunder, an annual investment advisory fee equal to .40 of 1% of the
average daily net assets of the Fund.
The fee shall be accrued daily at the rate of 1/365th of .40 of 1% applied
to the daily net assets of the Fund.
The advisory fee so accrued shall be paid to Adviser daily.
Witness the due execution hereof this 1st day of June, 1993.
Attest: HIBERNIA NATIONAL BANK
/S/ K. XXXX XXXXXXXX By:/S/ XXXXXXX X. XXXXX
Secretary Executive Vice President
TOWER MUTUAL FUNDS
/S/ C. XXXXX XXXXXXXX By:/S/ X. X. XXXXXXXX
Secretary President
Exhibit 5(ii) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
EXHIBIT G
TOWER MID CAP EQUITY FUND
For all services rendered by Adviser hereunder, the Trust shall pay to
Adviser and Adviser agrees to accept as full compensation for all services
rendered hereunder, an annual investment advisory fee equal to .75 of 1% of the
average daily net assets of the Fund.
The fee shall be accrued daily at the rate of 1/365th of .75 of 1% applied
to the daily net assets of the Fund.
The advisory fee so accrued shall be paid to Adviser daily.
Witness the due execution hereof this 10th day of March, 1998.
HIBERNIA NATIONAL BANK
By: /S/ XXXXX X. XXXXXXX
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President
Chief Investment Officer
TOWER MUTUAL FUNDS
By: /S/ XXXXXXX X. XXXXXXXX
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
