Exhibit (d)(6)
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made, amended and restated on the 2nd day of November, 2006,
between THE XXXXX FUND, a Massachusetts business trust (the "Trust"), on behalf
of the Xxxxx Treasury Only Money Market Fund, and Xxxxx Capital Management Inc.,
a corporation organized under the laws of Florida (the "Adviser")
W I T N E S S E T H:
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Trust is authorized to issue shares of beneficial interest
(hereafter referred to as "Shares") in separate series with each such series
representing the interests in a separate portfolio of securities and other
assets;
WHEREAS, the Trust has established and presently offers Shares of
beneficial interest in a portfolio currently known as the Xxxxx Treasury Only
Money Market Fund (the "Fund"); and
WHEREAS, the Trust desires to retain the Adviser to render investment
advisory services to the Trust with respect to the Fund as indicated herein and
the Adviser is willing to so render such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Appointment of Adviser. The Trust hereby appoints the Adviser to
act as investment adviser to the Trust and the Fund for the periods and on the
terms herein set forth. The Adviser accepts such appointment and agrees to
render the services herein set forth, for the compensation herein provided.
2. Delivery of Documents. The Trust has delivered (or will deliver as
soon as is possible) to the Adviser copies properly certified or authenticated
of each of the following documents:
(a) Agreement and Declaration of Trust of the Trust dated as of
August 10, 1995 (such Agreement and Declaration of Trust, as
presently in effect and as amended from time to time, is herein
called the "Trust Agreement"), copies of which are also on file
with the Secretary of the Commonwealth of Massachusetts;
(b) By-Laws of the Trust (such By-Laws, as presently in effect and as
amended from time to time, are herein called the "By-Laws");
(c) Certified resolutions of the Shareholder(s) and the Trustees of
the Trust approving the terms of this Agreement;
(d) Custodian Agreement (including related fee schedule) dated
January 15, 1996 between the Trust and PNC Bank (such Agreement,
as presently in effect and as amended and/or superseded from time
to time, is herein called the "Custodian Agreement");
(e) Prospectus and Statement of Additional Information of the Trust
with respect to the Fund as currently in effect (such Prospectus
and Statement of Additional Information, as currently in effect
and as amended, supplemented and/or superseded from time to time,
is herein called the "Prospectus"); and
(f) Registration Statement of the Trust under the Securities Act of
1933 (the "1933 Act"), and the 1940 Act on Form N-lA as filed
with the Securities and Exchange Commission (the "Commission") on
August 10, 1995, and as amended on Form N-lA (such Registration
Statement, as presently in effect and as amended from time to
time, is herein called the "Registration Statement").
The Trust agrees to promptly furnish the Adviser from time to time with copies
of all amendments of or supplements to or otherwise current versions of any of
the foregoing documents not heretofore furnished.
3. Name of Trust or Fund. The Trust and the Fund may use any name
derived from the name "Xxxxx Capital Management Inc.", if the Trust elects to do
so, only for so long as this Agreement, any other investment advisory or
management agreement between the Adviser and the Trust or any extension, renewal
or amendment hereof or thereof remains in effect, including any similar
agreement with any organization which shall have succeeded to the Adviser's
business as investment adviser. At such time as such an agreement shall no
longer be in effect, the Fund (to the extent the Trust has the legal power to
cause it to be done) shall cease to use such a name or any other name indicating
that it is advised or managed by or otherwise connected with the Adviser or any
organization which shall have so succeeded to the Adviser's business.
4. Duties of Adviser.
(a) Subject to the general supervision of the Trustees of the Trust,
the Adviser shall manage the investment operations of the Fund
and the composition of the Fund's assets, including the purchase,
retention and disposition thereof. In this regard, the Adviser:
(i) shall provide supervision of the Fund's assets, furnish a
continuous investment program for the Fund, determine from
time to time what investments or securities will be
purchased, retained or sold by the Fund, and what portion of
the assets will be invested or held uninvested as cash;
(ii) shall place orders with broker-dealers, foreign currency
dealers, futures commissions merchants or others pursuant to
the Adviser's determinations in accordance with the Fund's
policies as expressed in the Registration Statement; and
(iii) may, on occasions when it deems the purchase or sale of a
security to be in the best interests of the Fund as well as
its other customers (including any other Fund or any other
investment company or trust or advisory account for which
the Adviser acts as adviser), aggregate, to the extent
permitted by applicable laws and regulations, the securities
to be sold or purchased in order to obtain the best net
price and the most favorable execution. In such event,
allocation of the securities 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 Fund and to such other customers.
(b) The Adviser, in the performance of its duties hereunder, shall
act in conformity with the Trust Agreement, By-Laws, Registration
Statement and Prospectus and with the instructions and directions
of the Trustees of the Trust, and will use its best efforts to
conform to the requirements of the 1940 Act, the Investment
Advisers Act of 1940 (to the extent applicable), the Internal
Revenue Code of 1986, as amended, (the "Code") relating to
regulated investment companies and all rules and regulations
thereunder, the Xxxxxxx Xxxxxxx and Securities Fraud Enforcement
Act of 1988 (to the extent applicable) and all other applicable
federal and state laws, regulations and rulings, subject always
to policies and instructions adopted by the Trust's Board of
Trustees. In connection therewith, the Adviser shall use
reasonable efforts to manage the Fund so that it will qualify as
a regulated investment company under Subchapter M of the Code and
regulations issued thereunder.
(c) The Adviser shall render to the Trustees of the Trust such
periodic and special reports as the Trustees may reasonably
request.
(d) The Adviser shall notify the Trust of any material change in the
management of the Adviser within a reasonable time after such
change.
(e) The Adviser shall immediately notify the Trust in the event that
the Adviser or any of its affiliates: (1) becomes aware that it
is subject to a statutory disqualification that prevents the
Adviser from serving as investment adviser pursuant to this
Agreement; or (2) becomes aware that it is the subject of an
administrative proceeding or enforcement action by the Securities
and Exchange Commission or other regulatory authority. The
Adviser further agrees to notify the Trust immediately of any
material fact known to the Adviser respecting or relating to the
Adviser that is not contained in the Trust's Registration
Statement regarding the Trust, or any amendment or supplement
thereto, but that is required to be disclosed therein, and of any
statement contained therein that becomes untrue in any material
respect.
(f) The services of the Adviser hereunder are not deemed exclusive
and the Adviser shall be free to render similar services to
others so long as its services under this Agreement are not
impaired thereby.
5. Allocation of Charges and Expenses. Except as otherwise
specifically provided in this section 5, the Adviser shall pay the compensation
and expenses of all trustees, officers and executive employees of the Trust
(including the Fund's share of payroll taxes) who are affiliated persons of the
Adviser, and the Adviser shall make available, without expense to the Fund, the
services of such of its directors, officers and employees as may duly be elected
officers of the Trust, subject to their individual consent to serve and to any
limitations imposed by law. The Adviser shall provide at its expense the
portfolio management services described in section 4 hereof, other than the cost
(including taxes and brokerage commissions, if any) of securities purchased for
the Fund.
The Adviser shall not be required to pay any expenses of the Fund other
than those specifically allocated to it in this section 5.
6. Management Fee. For all services to be rendered, payments to be
made and costs to be assumed by the Adviser as provided in sections 4 and 5
hereof, the Trust on behalf of the Fund shall pay the Adviser on the last day of
each month the unpaid balance of a fee equal to 0.50% of the average daily net
assets as defined below of the Fund for such month.
The "average daily net assets" of the Fund shall mean the average of
the values placed on the Fund's net assets as of 4:00 p.m. (New York time) on
each day on which the net asset value of the Fund is determined consistent with
the provisions of Rule 22c-l under the 1940 Act or, if the Fund lawfully
determines the value of its net assets as of some other time on each business
day, as of such time. The value of the net assets of the Fund shall always be
determined pursuant to the applicable provisions of the Declaration and the
Registration Statement. If the determination of net asset value does not take
place for any particular day, then for the purposes of this section 6, the value
of the net assets of the Fund as last determined shall be deemed to be the value
of its net assets as of 4:00 p.m. (New York time), or as of such other time as
the value of the net assets of the Fund's portfolio may be lawfully determined
on that day. If the Fund determines the value of the net assets of its portfolio
more than once on any day, then the last such determination thereof on that day
shall be deemed to be the sole determination thereof on that day for the
purposes of this section 6.
The Adviser agrees that its gross compensation for any fiscal year
shall not be greater than an amount which, when added to the other expenses of
the Fund, shall cause the aggregate expenses of the Fund to equal the maximum
expenses under the lowest applicable expense limitation established pursuant to
the statutes or regulations of any jurisdiction in which the Shares of the Fund
may be qualified for offer and sale. Such calculation shall not take into
account expenses which may be excluded as provided under applicable law. Except
to the extent that such amount has been reflected in reduced payments to the
Adviser, the Adviser shall refund to the Fund the amount of any payment received
in excess of the limitation pursuant to this section 6 as promptly as
practicable after the end of such fiscal year, provided that the Adviser shall
not be required to pay the Fund an amount greater than the fee paid to it in
respect of such year pursuant to this Agreement. As used in this section 6,
"expenses" shall mean those expenses included in the applicable expense
limitation having the broadest specifications thereof, and "expense limitation"
means a limit on the maximum annual expenses which may be incurred by an
investment company determined (i) by multiplying a fixed percentage by the
average, or by multiplying more than one such percentage by different specified
amounts of the average, of the values of an investment company's net assets for
a fiscal year or (ii) by multiplying a fixed percentage by an investment
company's net investment income for a fiscal year. The words "lowest applicable
expense limitation" shall be construed to result in the largest reduction of the
Adviser's compensation for any fiscal year of the Fund; provided, however, that
nothing in this Agreement shall limit the Adviser's fees if not required by an
applicable statute or regulation referred to above in this section 6.
The Adviser may waive all or a portion of its fees provided for
hereunder and such waiver shall be treated as a reduction in purchase price of
its services. The Adviser shall be contractually bound hereunder by the terms of
any publicly announced waiver of its fee, or any limitation of the Fund's
expenses, as if such waiver or limitation were fully set forth herein.
7. Avoidance of Inconsistent Position; Services Not Exclusive. In
connection with purchases or sales of portfolio securities and other investments
for the account of the Fund, neither the Adviser nor any of its directors,
officers or employees shall act as a principal or agent or receive any
commission. The Adviser or its agent shall arrange for the placing of all orders
for the purchase and sale of portfolio securities and other investments for the
Fund's account with brokers or dealers selected by the Adviser in accordance
with Fund policies as expressed in the Registration Statement. If any occasion
should arise in which the Adviser gives any advice to its clients concerning the
Shares of the Fund, the Adviser shall act solely as investment counsel for such
clients and not in any way on behalf of the Fund.
The Adviser's services to the Fund pursuant to this Agreement are not
to be deemed to be exclusive and it is understood that the Adviser may render
investment advice, management and services to others. In acting under this
Agreement, the Adviser shall be an independent contractor and not an agent of
the Trust.
8. Limitation of Liability of Manager. As an inducement to the
Adviser's undertaking to render services pursuant to this Agreement, the Trust
agrees that the Adviser shall not be liable under this Agreement for any error
of judgment or mistake of law or for any loss suffered by the Fund in connection
with the matters to which this Agreement relates, provided that nothing in this
Agreement shall be deemed to protect or purport to protect the Adviser against
any liability to the Trust, the Fund 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, or by reason of its reckless
disregard of its obligations and duties hereunder. Any person, even though also
employed by the Adviser, who may be or become an employee of and paid by the
Fund shall be deemed when acting within the scope of his or her employment by
the Fund, to be acting in such employment solely for the Fund and not as the
Adviser's employee or agent.
9. Duration and Termination of This Agreement. This Agreement shall
remain in force until January 15, 1998, and continue in force from year to year
thereafter, but only so long as such continuance is specifically approved at
least annually (a) by the vote of a majority of the Trustees who are not parties
to this Agreement or interested persons of any party to this agreement, 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 the vote of a majority of the outstanding
voting securities of the Fund. The aforesaid requirement that continuance of
this Agreement be "specifically approved at least annually" shall be construed
in a manner consistent with the 1940 Act and the rules and regulations
thereunder.
This Agreement may be terminated with respect to the Fund at any time,
without the payment of any penalty, by the vote of a majority of the outstanding
voting securities of the Fund or by the Trust's Board of Trustees on 60 days'
written notice to the Adviser, or by the Adviser on 60 days' written notice to
the Fund. This Agreement shall terminate automatically in the event of its
assignment .
10. Retention of Sub-Advisers. Subject to the Fund's obtaining any
initial and periodic approvals that are required under Section 15 of the 1940
Act, the Adviser may retain a sub-adviser or sub-advisers with respect to the
Fund, at the Adviser's own cost and expense.
11. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought, and no amendment of this Agreement shall be
effective until approved by the vote of a majority of the Trustees who are not
parties to this Agreement or interested persons of any party to this Agreement,
cast in person at a meeting called for the purpose of voting on such approval.
12. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. 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.
In interpreting the provisions of this Agreement, the definitions
contained in Section 2(a) of the 1940 Act (particularly the definitions of
"affiliated person," "assignment" and "majority of the outstanding voting
securities"), as from time to time amended, shall be applied, subject, however,
to such exemptions as may be granted by the SEC by any rule, regulation or
order.
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts, provided that nothing herein shall be construed
in a manner inconsistent with the 1940 Act, or in a manner which would cause the
Fund to fail to comply with the requirements of Subchapter M of the Code.
This Agreement shall supersede all prior investment advisory or
management agreements entered into between the Adviser and the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed as of the day and year first above written.
THE XXXXX FUND
Attest:
______________________ By: __________________
Title: President
XXXXX CAPITAL MANAGEMENT INC.
Attest:
_______________________ By: _________________
Title: President
