Exhibit (d)(2)
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT is made as of the 2nd day of December, 2005 by
and between XXXXXXX XX INVESTMENTS TRUST, a Delaware statutory trust (the
"Trust"), on behalf of the series listed on Schedule A, and DEUTSCHE ASSET
MANAGEMENT, INC., a Delaware corporation (the "Advisor").
WHEREAS, the Trust is registered as an open-end, management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), consisting of several series of shares, each having its own
investment policies;
WHEREAS, the Advisor is registered as an investment advisor
under the Investment Advisers Act of 1940, as amended, and engages in the
business of acting as an investment advisor; and
WHEREAS, the Trust and the Advisor desire to enter into an
agreement to provide investment advisory services for the series listed in
Schedule A to this Agreement on the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt whereof is
hereby acknowledged, the parties hereto agree as follows:
1. Appointment of Investment Advisor. The Trust hereby
appoints the Advisor to act as the investment advisor of each series listed in
Schedule A to this Agreement (each such series, together with all other series
subsequently established by the Trust and made subject to this Agreement in
accordance with section 11, being herein referred to as a "Series," and
collectively as the "Series"). The Advisor shall manage a Series' affairs and
shall supervise all aspects of a Series' operations (except as otherwise set
forth herein), including the investment and reinvestment of the cash, securities
or other properties comprising a Series' assets, subject at all times to the
policies and control of the Board of Trustees. The Advisor shall give a Series
the benefit of its best judgment, efforts and facilities in rendering its
services as Advisor.
2. Delivery of Documents. The Trust has furnished the Advisor
with copies properly certified or authenticated of each of the following:
(a) The Trust's Declaration of Trust, filed with the State of
Delaware on September 13, 1993 and all amendments thereto (such Declaration of
Trust, as presently in effect and as it shall from time to time be amended, is
herein called the "Declaration of Trust");
(b) The Trust's Agreement of Trust and all amendments thereto
(such Agreement of Trust, as presently in effect and as it shall from time to
time be amended, is herein called the "Trust Agreement");
1
(c) Resolutions of the Trust's Board of Trustees and
shareholders authorizing the appointment of the Advisor and approving this
Agreement;
(d) The Trust's Registration Statement on Form N-1A under the
Securities Act of 1933, as amended (the "1933 Act") (File No. 33-68704) and
under the 1940 Act as filed with the Securities and Exchange Commission (the
"SEC") relating to the shares of the Trust and its series, and all amendments
thereto; and
(e) Each Series' most recent prospectus (such prospectus, as
presently in effect, and all amendments and supplements thereto are herein
called the "Prospectus").
The Trust will furnish the Advisor from time to time with
copies, properly certified or authenticated, of all amendments or supplements to
the foregoing, if any, and all documents, notices and reports filed with the
SEC.
The Advisor will provide the Trust with copies of its Form
ADV, including all amendments thereto, as filed with the SEC.
3. Duties of Investment Advisor. In carrying out its
obligations under Section 1 hereof, the Advisor shall:
(a) supervise and manage all aspects of a Series' operations,
except for distribution services;
(b) formulate and implement continuing programs for the
purchases and sales of securities, consistent with the investment objective and
policies of a Series;
(c) provide the Trust with, or obtain for it, adequate office
space and all necessary office equipment and services, including telephone
service, utilities, stationery, supplies and similar items for the Trust's
principal office;
(d) obtain and evaluate pertinent information about
significant developments and economic, statistical and financial data, domestic,
foreign or otherwise, whether affecting the economy generally or a Series, and
whether concerning the individual issuers whose securities are included in a
Series portfolio or the activities in which they engage, or with respect to
securities which the Advisor considers desirable for inclusion in a Series'
portfolio;
(e) determine which issuers and securities shall be
represented in a Series' portfolio and regularly report thereon to the Trust's
Board of Trustees; and
(f) take all actions necessary to carry into effect a Series'
purchase and sale programs.
4. Portfolio Transactions. The Advisor is authorized to select
the brokers or dealers that will execute the purchases and sales of portfolio
securities for a Series and is directed to use its reasonable best efforts to
obtain the best net results as described from time to time in a Series'
prospectus and statement of additional information. The Advisor will
2
promptly communicate to a Series' administrator and to the officers and the
Trustees of the Trust such information relating to portfolio transactions as
they may reasonably request.
It is understood that the Advisor will not be deemed to have
acted unlawfully, or to have breached a fiduciary duty to the Trust or be in
breach of any obligation owing to the Trust under this Agreement, or otherwise,
solely by reason of its having directed a securities transaction on behalf of a
Series to a broker-dealer in compliance with the provisions of Section 28(e) of
the Securities Exchange Act of 1934 or as otherwise permitted from time to time
by a Series' prospectus and statement of additional information.
Subject to the policies established by the Board in compliance
with applicable law, the Advisor may direct DB Securities, Inc. ("DB
Securities") or any of its affiliates to execute portfolio transactions for a
Series on an agency basis. The commissions paid to DB Securities or any of its
affiliates must be, as required by Rule 17e-1 under the 1940 Act, "reasonable
and fair compared to the commission, fee or other remuneration received or to be
received by other brokers in connection with comparable transactions involving
similar securities . . . during a comparable period of time." If the purchase or
sale of securities consistent with the investment policies of a Series or one or
more other accounts of the Advisor is considered at or about the same time,
transactions in such securities will be allocated among the accounts in a manner
deemed equitable by the Advisor. DB Securities or any of its affiliates and the
Advisor may combine such transactions, in accordance with applicable laws and
regulations, in order to obtain the best net price and most favorable execution.
The Trust on behalf of a Series will not deal with the Advisor
or DB Securities or any of its affiliates in any transaction in which the
Advisor or DB Securities or any of its affiliates acts as a principal with
respect to any part of a Series' order, except in compliance with rules of the
SEC. If DB Securities or any of its affiliates is participating in an
underwriting or selling group, a Series may not buy portfolio securities from
the group except in accordance with policies established by the Board in
compliance with rules of the SEC.
5. Control by Board of Trustees. Any management or supervisory
activities undertaken by the Advisor pursuant to this Agreement, as well as any
other activities undertaken by the Advisor on behalf of a Series pursuant
thereto, shall at all times be subject to any applicable directives of the
Board.
6. Compliance with Applicable Requirements. In carrying out
its obligations under this Agreement, the Advisor shall at all times conform to:
(a) all applicable provisions of the 1940 Act and any rules
and regulations adopted thereunder;
(b) the provisions of the Registration Statement of the Trust
on behalf of a Series under the 1933 Act and the 1940 Act;
(c) the provisions of the Declaration of Trust;
(d) the provisions of the Trust Agreement; and
3
(e) any other applicable provisions of state and federal law.
7. Expenses. The expenses connected with the Trust on behalf
of a Series shall be allocable between the Trust and the Advisor as follows:
(a) The Advisor shall furnish, at its expense and without cost
to the Trust, the services of one or more officers of the Advisor, to the extent
that such officers may be required by the Trust on behalf of a Series for the
proper conduct of its affairs.
(b) The Trust assumes and shall pay or cause to be paid all
other expenses of the Trust on behalf of a Series, including, without
limitation: payments to the Trust's distributor under the Trust's plan of
distribution; the charges and expenses of any registrar, any custodian or
depository appointed by the Trust for the safekeeping of a Series' cash,
portfolio securities and other property, and any transfer, dividend or
accounting agent or agents appointed by the Trust; brokers' commissions
chargeable to the Trust on behalf of a Series in connection with portfolio
securities transactions to which the Trust is a party; all taxes, including
securities issuance and transfer taxes, and fees payable by the Trust to
Federal, State or other governmental agencies; the costs and expenses of
engraving or printing of certificates representing shares of the Trust; all
costs and expenses in connection with the registration and maintenance of
registration of the Trust and its shares with the SEC and various states and
other jurisdictions (including filing fees, legal fees and disbursements of
counsel); the costs and expenses of printing, including typesetting, and
distributing prospectuses and statements of additional information of the Trust
and supplements thereto to the Trust's shareholders; all expenses of
shareholders' and Trustees' meetings and of preparing, printing and mailing of
proxy statements and reports to shareholders; fees and travel expenses of
Trustees or Trustee members of any advisory board or committee; all expenses
incident to the payment of any dividend, distribution, withdrawal or redemption,
whether in shares or in cash; charges and expenses of any outside service used
for pricing of the Trust's shares; charges and expenses of legal counsel,
including counsel to the Trustees of the Trust who are not interested persons
(as defined in the 0000 Xxx) of the Trust and of independent certified public
accountants, in connection with any matter relating to the Trust; membership
dues of industry associations; interest payable on Trust borrowings; postage;
insurance premiums on property or personnel (including officers and Trustees) of
the Trust which inure to its benefit; extraordinary expenses (including but not
limited to, legal claims and liabilities and litigation costs and any
indemnification related thereto); and all other charges and costs of the Series'
or Trust's operation unless otherwise explicitly provided herein.
8. Delegation of Advisory Services. Subject to the prior
approval of a majority of the members of the Trust's and the Series' Board of
Trustees, including a majority of the Trustees who are not "interested persons,"
as defined in the 1940 Act, the Advisor may, through a sub-advisory agreement or
other arrangement, delegate to any other company that the Advisor controls, is
controlled by, or is under common control with, or to specified employees of any
such companies, or to more than one such company, to the extent permitted by
applicable law, certain of the Advisor's duties enumerated in section 1 hereof;
provided, that the Advisor shall continue to supervise the services provided by
such company or employees and any such delegation shall not relieve the Advisor
of any of its obligations hereunder.
4
Subject to the prior approval of a majority of the members of
the Trust's and the Series' Board of Trustees, including a majority of the
Trustees who are not "interested persons," as defined in the 1940 Act, the
Advisor may, through a sub-advisory agreement, delegate to any other company
that is not an "affiliated person" (as defined in the 0000 Xxx) of the Advisor
or of the Trust or Series (other than by reason of serving as an investment
advisor to the Series) (each a "sub-advisor"), to the extent permitted by
applicable law, certain of the Advisor's duties enumerated in section 1 hereof;
provided, that the Advisor shall continue to supervise the services provided by
such sub-advisor and any such delegation shall not relieve the Advisor of any of
its obligations hereunder.
Subject to the provisions of this Agreement, the duties of any
sub-advisor or delegate, the portion of portfolio assets of the Series that the
sub-advisor or delegate shall manage and the fees to be paid to the sub-advisor
or delegate by the Advisor under and pursuant to any sub-advisory agreement or
other arrangement entered into in accordance with this Agreement may be adjusted
from time to time by the Advisor, subject to the prior approval of a majority of
the members of the Trust's and the Series' Board of Trustees, including a
majority of the Trustees who are not "interested persons," as defined in the
1940 Act.
9. Compensation. For the services to be rendered and the
expenses assumed by the Advisor, the Trust shall pay to the Advisor monthly
compensation in accordance with Schedule A.
Except as hereinafter set forth, compensation under this
Agreement shall be calculated and accrued daily and the amounts of the daily
accruals shall be paid monthly. If this Agreement becomes effective subsequent
to the first day of a month, compensation for that part of the month this
Agreement is in effect shall be prorated in a manner consistent with the
calculation of the fees as set forth above.
In the event of termination of this Agreement, the 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 month as a percentage of the total
number of days in such month.
In addition to the foregoing, the Advisor may from time to
time agree not to impose all or a portion of its fee otherwise payable hereunder
(in advance of the time such fee or a portion thereof would otherwise accrue)
and/or undertake to pay or reimburse the Trust on behalf of the Series for all
or a portion of its expenses not otherwise required to be borne or reimbursed by
the Advisor. Any such fee reduction or undertaking may be discontinued or
modified by the Advisor at any time.
All rights of compensation under this Agreement for services
performed as of the termination date shall survive the termination of this
Agreement.
10. Non-Exclusivity. The services of the Advisor to the Trust
on behalf of each Series are not to be deemed to be exclusive, and the Advisor
shall be free to render investment advisory or other services to others
(including other investment companies) and to engage in other activities, so
long as its services under this Agreement are not impaired thereby.
5
It is understood and agreed that officers or directors of the Advisor may serve
as officers or Trustees of the Trust, and that officers or Trustees of the Trust
may serve as officers or directors of the Advisor to the extent permitted by
law; and that the officers and directors of the Advisor are not prohibited from
engaging in any other business activity or from rendering services to any other
person, or from serving as partners, officers, trustees or directors of any
other firm, trust or corporation, including other investment companies.
11. Additional Series and Classes. In the event that the Trust
establishes one or more series of Shares or one or more classes of Shares after
the effectiveness of this Agreement, such series of shares or classes of shares,
as the case may be, shall become Series and Classes under this Agreement upon
approval of this Agreement by the Board with respect to the series of Shares or
class of Shares and the execution of an amended Appendix A reflecting the
applicable names and terms.
12. Duration and Termination. This Agreement, unless sooner
terminated as provided herein, shall remain in effect with respect to the Trust
on behalf of a Series until two years from 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 (a) by the vote of a majority of those
Trustees of the Trust 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 Trustees of the Trust or by vote of a
majority of the outstanding voting securities of a Series, subject to the right
of the Trust and the Advisor to terminate this contract as provided in this
Section 12; provided, however, that if the shareholders of a Series fail to
approve the Agreement as provided herein, the Advisor may continue to serve
hereunder in the manner and to the extent permitted by the 1940 Act as modified
or interpreted by any applicable order or orders of the SEC or any rules or
regulations adopted by, or interpretative releases of, the SEC thereunder. 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 as modified or interpreted by any applicable order or orders of the SEC
or any rules or regulations adopted by, or interpretative releases of, the SEC
thereunder.
This Agreement may be terminated as to a Series at any time,
without the payment of any penalty by vote of a majority of the Trustees of the
Trust or by vote of a majority of the outstanding voting securities of a Series
on not less than 60 days' written notice to the Advisor, or by the Advisor 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 of
such party.
As used in this Section 12, the term "assignment" shall have
the meaning as set forth in the 1940 Act as modified or interpreted by any
applicable order or orders of the SEC or any rules or regulations adopted by, or
interpretative releases of, the SEC.
13. Limitation of Liability of the Advisor; Indemnification.
The Advisor shall not be liable for any error of judgment or mistake of law or
for any loss suffered by a Series 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 or a loss
6
resulting from willful misfeasance, bad faith or gross negligence on the part of
the Advisor in the performance of its duties or from reckless disregard by it of
its obligations and duties under this Agreement.
14. Notices. Any notices under this Agreement shall be in
writing, addressed and delivered or mailed postage paid to the other party at
such address as such other party may designate for the receipt of such notice.
Currently such addresses are as follows: if to the Trust , Xxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, if to the Advisor, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
15. 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.
16. Entire Agreement.This Agreement states the entire
agreement of the parties hereto, and is intended to be the complete and
exclusive statement of the terms hereof. It may not be added to or changed
orally, and may not be modified or rescinded except by a writing signed by the
parties hereto and in accordance with the 1940 Act as modified or interpreted by
any applicable order or orders of the SEC or any rules or regulations adopted
by, or interpretative releases of, the SEC, when applicable.
17. Reports. The Trust and the Advisor agree to furnish to
each other, if applicable, 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.
18. Certain Records. Any records required to be maintained and
preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated
under the 1940 Act which are prepared or maintained by the Advisor on behalf of
the Trust are the property of the Trust and will be surrendered promptly to the
Trust on request.
19. Questions of Interpretation. Any question of
interpretation of any term or provision of this Agreement having a counterpart
in or otherwise derived from a term or provision of the 1940 Act shall be
resolved by reference to such term or provision of the 1940 Act and to
interpretations thereof, if any, by the United States Courts or in the absence
of any controlling decision of any such court, by rules, regulations or orders
of the SEC issued pursuant to the 1940 Act. In addition, where the effect of a
requirement of the 1940 Act reflected in any provision of this Agreement is
modified or interpreted by any applicable order or orders of the SEC or any
rules or regulations adopted by, or interpretative releases of, the SEC
thereunder, such provision shall be deemed to incorporate the effect of such
order, rule, regulation or interpretative release. Otherwise the provisions of
this Agreement shall be interpreted in accordance with the laws of Maryland.
20. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
7
21. Amendment and Restatement.This Agreement is an Amendment
and Restatement of the Investment Advisory Agreement dated July 30, 2002 between
the Trust on behalf of the Series listed on Schedule A and the Advisor and shall
supersede all prior investment advisory or management agreements between the
Trust on behalf of the Series listed on Schedule A and the Advisor.
8
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in duplicate by their respective officers on the day
and year first above written.
XXXXXXX XX INVESTMENTS TRUST
on behalf of the series listed on
Schedule A
Attest: By: /s/Xxxx Xxxxxxxx By: /s/Xxxxxxx X. Xxxxxxxx
---------------- ----------------------
Name: Xxxx Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
------------- -------------------
Title: President
DEUTSCHE ASSET MANAGEMENT, INC.
Attest: By: /s/Xxxxxxxx XxXxxxxxxx By: /s/A. Xxxxxx Xxxxx
---------------------- ----------------------
Name: Xxxxxxxx XxXxxxxxxx Name: A. Xxxxxx Xxxxx
------------------- -------------------
Title: Secretary and Chief Legal
Officer
9
SCHEDULE A
TO INVESTMENT ADVISORY AGREEMENT
MADE AS OF DECEMBER 2, 2005
BETWEEN
XXXXXXX XX INVESTMENTS TRUST, on behalf of the Series listed below,
AND DEUTSCHE ASSET MANAGEMENT, INC.
Series Investment Advisory Fee
------ -----------------------
Xxxxxxx Fixed Income Fund 0.40%
Xxxxxxx Short Duration Fund 0.40%
10
