MANAGEMENT AGREEMENT
Xxxx Xxxxx Partners Fund Advisor, LLC
This MANAGEMENT AGREEMENT ("Agreement") is made this 13th day of
April, 2007, by and between Xxxx Xxxxx Partners Income Trust (the
"Trust") and Xxxx Xxxxx Partners Fund Advisor, LLC, a Delaware limited
liability company (the "Manager").
WHEREAS, the Trust is a Maryland business trust registered as a
management investment company under the Investment Company Act of
1940, as amended (the "1940 Act");
WHEREAS, the Manager is engaged primarily in rendering investment
advisory, management and administrative services and is registered as
an investment adviser under the Investment Advisers Act of 1940, as
amended;
WHEREAS, the Trust wishes to retain the Manager to provide
investment advisory, management, and administrative services to the
Trust with respect to the series of the Trust designated in Schedule A
annexed hereto (the "Fund"); and
WHEREAS, the Manager is willing to furnish such services on the
terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the promises and mutual
covenants herein contained, it is agreed as follows:
1. The Trust hereby appoints the Manager to act as investment
adviser and administrator of the Fund for the period and on the terms
set forth in this Agreement. The Manager accepts such appointment and
agrees to render the services herein set forth, for the compensation
herein provided.
2. The Fund shall at all times keep the Manager fully informed
with regard to the securities owned by it, its funds available, or to
become available, for investment, and generally as to the condition of
its affairs. It shall furnish the Manager with such other documents
and information with regard to its affairs as the Manager may from
time to time reasonably request.
3. (a) Subject to the supervision of the Trust's Board of
Trustees (the "Board"), the Manager shall regularly provide the Fund
with investment research, advice, management and supervision and shall
furnish a continuous investment program for the Fund's portfolio of
securities and other investments consistent with the Fund's investment
objectives, policies and restrictions, as stated in the Fund's current
Prospectus and Statement of Additional Information. The Manager shall
determine from time to time what securities and other investments will
be purchased (including, as permitted in accordance with this
paragraph, swap agreements, options and futures), retained, sold or
exchanged by the Fund and what portion of the assets of the Fund's
portfolio will be held in the various securities and other investments
in which the Fund invests, and shall implement those decisions
(including the execution of investment documentation), all subject to
the provisions of the Trust's Declaration of Trust and By-Laws
(collectively, the "Governing Documents"), the 1940 Act, and the
applicable rules and regulations promulgated thereunder by the
Securities and Exchange Commission (the "SEC") and interpretive
guidance issued thereunder by the SEC staff and any other applicable
federal and state law, as well as the investment objectives, policies
and restrictions of the Fund referred to above, and any other specific
policies adopted by the Board and disclosed to the Manager. The
Manager is authorized as the agent of the Trust to give instructions
to the custodian of the Fund as to deliveries of securities and other
investments and payments of cash for the account of the Fund. Subject
to applicable provisions of the 1940 Act and direction from the Board,
the investment program to be provided hereunder may entail the
investment of all or substantially all of the assets of the Fund in
one or more investment companies. The Manager will place orders
pursuant to its investment determinations for the Fund either directly
with the issuer or with any broker or dealer, foreign currency dealer,
futures commission merchant or others selected by it. In connection
with the selection of such brokers or dealers and the placing of such
orders, subject to applicable law, brokers or dealers may be selected
who also provide brokerage and research services (as those terms are
defined in Section 28(e) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) to the Funds and/or the other accounts
over which the Manager or its affiliates exercise investment
discretion. The Manager is authorized to pay a broker or dealer who
provides such brokerage and research services a commission for
executing a portfolio transaction for the Fund which is in excess of
the amount of commission another broker or dealer would have charged
for effecting that transaction if the Manager determines in good faith
that such amount of commission is reasonable in relation to the value
of the brokerage and research services provided by such broker or
dealer. This determination may be viewed in terms of either that
particular transaction or the overall responsibilities which the
Manager and its affiliates have with respect to accounts over which
they exercise investment discretion. The Board may adopt policies and
procedures that modify and restrict the Manager's authority regarding
the execution of the Fund's portfolio transactions provided herein.
The Manager shall also provide advice and recommendations with respect
to other aspects of the business and affairs of the Fund, shall
exercise voting rights, rights to consent to corporate action and any
other rights pertaining to the Fund's portfolio securities subject to
such direction as the Board may provide, and shall perform such other
functions of investment management and supervision as may be directed
by the Board. The Manager may execute on behalf of the Fund certain
agreements, instruments and documents in connection with the services
performed by it under this Agreement. These may include, without
limitation, brokerage agreements, clearing agreements, account
documentation, futures and option agreements, swap agreements, other
investment related agreements, and any other agreements, documents or
instruments the Manager believes are appropriate or desirable in
performing its duties under this Agreement.
(b) Subject to the direction and control of the Board, the
Manager shall perform such administrative and management services as
may from time to time be reasonably requested by the Fund as necessary
for the operation of the Fund, such as (i) supervising the overall
administration of the Fund, including negotiation of contracts and
fees with and the monitoring of performance and xxxxxxxx of the Fund's
transfer agent, shareholder servicing agents, custodian and other
independent contractors or agents, (ii) providing certain compliance,
fund accounting, regulatory reporting, and tax reporting services,
(iii) preparing or participating in the preparation of Board
materials, registration statements, proxy statements and reports and
other communications to shareholders, (iv) maintaining the Fund's
existence, and (v) during such times as shares are publicly offered,
maintaining the registration and qualification of the Fund's shares
under federal and state laws. Notwithstanding the foregoing, the
Manager shall not be deemed to have assumed any duties with respect
to, and shall not be responsible for, the distribution of the shares
of any Fund, nor shall the Manager be deemed to have assumed or have
any responsibility with respect to functions specifically assumed by
any transfer agent, fund accounting agent, custodian, shareholder
servicing agent or other agent, in each case employed by the Fund to
perform such functions.
(c) The Fund hereby authorizes any entity or person associated
with the Manager which is a member of a national securities exchange
to effect any transaction on the exchange for the account of the Fund
which is permitted by Section 11(a) of the Exchange Act and Rule 11a2-
2(T) thereunder, and the Fund hereby consents to the retention of
compensation for such transactions in accordance with Rule 11a2-
2(T)(a)(2)(iv). Notwithstanding the foregoing, the Manager agrees
that it will not deal with itself, or with members of the Board or any
principal underwriter of the Fund, as principals or agents in making
purchases or sales of securities or other property for the account of
the Fund, nor will it purchase any securities from an underwriting or
selling group in which the Manager or its affiliates is participating,
or arrange for purchases and sales of securities between the Fund and
another account advised by the Manager or its affiliates, except in
each case as permitted by the 1940 Act and in accordance with such
policies and procedures as may be adopted by the Fund from time to
time, and will comply with all other provisions of the Governing
Documents and the Fund's then-current Prospectus and Statement of
Additional Information relative to the Manager and its directors and
officers.
4. Subject to the Board's approval, the Manager or the Fund
may enter into contracts with one or more investment subadvisers or
subadministrators, including without limitation, affiliates of the
Manager, in which the Manager delegates to such investment subadvisers
or subadministrators any or all its duties specified hereunder, on
such terms as the Manager will determine to be necessary, desirable or
appropriate, provided that in each case the Manager shall supervise
the activities of each such subadviser or subadministrator and further
provided that such contracts impose on any investment subadviser or
subadministrator bound thereby all the conditions to which the Manager
is subject hereunder and that such contracts are entered into in
accordance with and meet all applicable requirements of the 1940 Act.
5. (a) The Manager, at its expense, shall supply the Board
and officers of the Trust with all information and reports reasonably
required by them and reasonably available to the Manager and shall
furnish the Fund with office facilities, including space, furniture
and equipment and all personnel reasonably necessary for the operation
of the Fund. The Manager shall oversee the maintenance of all books
and records with respect to the Fund's securities transactions and the
keeping of the Fund's books of account in accordance with all
applicable federal and state laws and regulations. In compliance with
the requirements of Rule 31a-3 under the 1940 Act, the Manager hereby
agrees that any records that it maintains for the Fund are the
property of the Fund, and further agrees to surrender promptly to the
Fund any of such records upon the Fund's request. The Manager further
agrees to arrange for the preservation of the records required to be
maintained by Rule 31a-1 under the 1940 Act for the periods prescribed
by Rule 31a-2 under the 1940 Act. The Manager shall authorize and
permit any of its directors, officers and employees, who may be
elected as Board members or officers of the Fund, to serve in the
capacities in which they are elected.
(b) The Manager shall bear all expenses, and shall furnish all
necessary services, facilities and personnel, in connection with its
responsibilities under this Agreement. Other than as herein
specifically indicated, the Manager shall not be responsible for the
Fund's expenses, including, without limitation, advisory fees;
distribution fees; interest; taxes; governmental fees; voluntary
assessments and other expenses incurred in connection with membership
in investment company organizations; organization costs of the Fund;
the cost (including brokerage commissions, transaction fees or
charges, if any) in connection with the purchase or sale of the Fund's
securities and other investments and any losses in connection
therewith; fees and expenses of custodians, transfer agents,
registrars, independent pricing vendors or other agents; legal
expenses; loan commitment fees; expenses relating to share
certificates; expenses relating to the issuing and redemption or
repurchase of the Fund's shares and servicing shareholder accounts;
expenses of registering and qualifying the Fund's shares for sale
under applicable federal and state law; expenses of preparing, setting
in print, printing and distributing prospectuses and statements of
additional information and any supplements thereto, reports, proxy
statements, notices and dividends to the Fund's shareholders; costs of
stationery; website costs; costs of meetings of the Board or any
committee thereof, meetings of shareholders and other meetings of the
Fund; Board fees; audit fees; travel expenses of officers, members of
the Board and employees of the Fund, if any; and the Fund's pro rata
portion of premiums on any fidelity bond and other insurance covering
the Fund and its officers, Board members and employees; litigation
expenses and any non-recurring or extraordinary expenses as may arise,
including, without limitation, those relating to actions, suits or
proceedings to which the Fund is a party and the legal obligation
which the Fund may have to indemnify the Fund's Board members and
officers with respect thereto.
6. No member of the Board, officer or employee of the Trust or
Fund shall receive from the Trust or Fund any salary or other
compensation as such member of the Board, officer or employee while he
is at the same time a director, officer, or employee of the Manager or
any affiliated company of the Manager, except as the Board may decide.
This paragraph shall not apply to Board members, executive committee
members, consultants and other persons who are not regular members of
the Manager's or any affiliated company's staff.
7. As compensation for the services performed and the
facilities furnished and expenses assumed by the Manager, including
the services of any consultants retained by the Manager, the Fund
shall pay the Manager, as promptly as possible after the last day of
each month, a fee, computed daily at an annual rate set forth opposite
the Fund's name on Schedule A annexed hereto, provided however, that
if the Fund invests all or substantially all of its assets in another
registered investment company for which the Manager or an affiliate of
the Manager serves as investment adviser or investment manager, the
annual fee computed as set forth on such Schedule A shall be reduced
by the aggregate management fees allocated to that Fund for the Fund's
then-current fiscal year from such other registered investment
company. The first payment of the fee shall be made as promptly as
possible at the end of the month succeeding the effective date of this
Agreement, and shall constitute a full payment of the fee due the
Manager for all services prior to that date. If this Agreement is
terminated as of any date not the last day of a month, such fee shall
be paid as promptly as possible after such date of termination, shall
be based on the average daily net assets of the Fund in that period
from the beginning of such month to such date of termination, and
shall be that proportion of such average daily net assets as the
number of business days in such period bears to the number of business
days in such month. The average daily net assets of the Fund shall in
all cases be based only on business days and be computed as of the
time of the regular close of business of the New York Stock Exchange,
or such other time as may be determined by the Board.
8. The Manager assumes no responsibility under this Agreement
other than to render the services called for hereunder, in good faith,
and shall not be liable for any error of judgment or mistake of law,
or for any loss arising out of any investment or for any act or
omission in the execution of securities transactions for the Fund,
provided that nothing in this Agreement shall protect the Manager
against any liability to the Fund to which the Manager 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. As used
in this Section 8, the term "Manager" shall include any affiliates of
the Manager performing services for the Trust or the Fund contemplated
hereby and the partners, shareholders, directors, officers and
employees of the Manager and such affiliates.
9. Nothing in this Agreement shall limit or restrict the right of
any director, officer, or employee of the Manager who may also be a
Board member, officer, or employee of the Trust or the Fund, to engage
in any other business or to devote his time and attention in part to
the management or other aspects of any other business, whether of a
similar nature or a dissimilar nature, nor to limit or restrict the
right of the Manager to engage in any other business or to render
services of any kind, including investment advisory and management
services, to any other fund, firm, individual or association. If the
purchase or sale of securities consistent with the investment policies
of the Fund or one or more other accounts of the Manager 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
Manager. Such transactions may be combined, in accordance with
applicable laws and regulations, and consistent with the Manager's
policies and procedures as presented to the Board from time to time.
10. For the purposes of this Agreement, the Fund's "net assets"
shall be determined as provided in the Fund's then-current Prospectus
and Statement of Additional Information and the terms "assignment,"
"interested person," and "majority of the outstanding voting
securities" shall have the meanings given to them by Section 2(a) of
the 1940 Act, subject to such exemptions as may be granted by the SEC
by any rule, regulation or order.
11. This Agreement will become effective with respect to the Fund
on the date set forth opposite the Fund's name on Schedule A annexed
hereto, provided that it shall have been approved by the Trust's Board
and by the shareholders of the Fund in accordance with the
requirements of the 1940 Act and, unless sooner terminated as provided
herein, will continue in effect until November 30, 2007. Thereafter,
if not terminated, this Agreement shall continue in effect with
respect to the Fund, so long as such continuance is specifically
approved at least annually (i) by the Board or (ii) by a vote of a
majority of the outstanding voting securities of the Fund, provided
that in either event the continuance is also approved by a majority of
the Board members who are not interested persons of any party to this
Agreement, by vote cast in person at a meeting called for the purpose
of voting on such approval.
12. This Agreement is terminable with respect to the Fund without
penalty by the Board or by vote of a majority of the outstanding
voting securities of the Fund, in each case on not more than 60 days'
nor less than 30 days' written notice to the Manager, or by the
Manager upon not less than 90 days' written notice to the Fund, and
will be terminated upon the mutual written consent of the Manager and
the Trust. This Agreement shall terminate automatically in the event
of its assignment by the Manager and shall not be assignable by the
Trust without the consent of the Manager.
13. The Manager agrees that for services rendered to the Fund, or
for any claim by it in connection with services rendered to the Fund,
it shall look only to assets of the Fund for satisfaction and that it
shall have no claim against the assets of any other portfolios of the
Trust. The undersigned officer of the Trust has executed this
Agreement not individually, but as an officer under the Trust's
Declaration of Trust and the obligations of this Agreement are not
binding upon any of the Trustees, officers or shareholders of the
Trust individually.
14. 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 which enforcement of the change, waiver,
discharge or termination is sought, and no material amendment of the
Agreement shall be effective until approved, if so required by the
1940 Act, by vote of the holders of a majority of the Fund's
outstanding voting securities.
15. This Agreement embodies the entire agreement and understanding
between the parties hereto, and supersedes all prior agreements and
understandings relating to the subject matter hereof. Should any part
of this Agreement be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby. This Agreement shall be binding on and shall
inure to the benefit of the parties hereto and their respective
successors.
16. This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of New
York.
[signature page to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their officers thereunto duly authorized.
XXXX XXXXX PARTNERS INCOME TRUST
By:
Name:
Title:
XXXX XXXXX PARTNERS FUND ADVISOR, LLC
By:
Name:
Title:
Schedule A
Xxxx Xxxxx Partners California Municipals Fund
Date:
April 13, 2007
Fee:
The following percentage of the Fund's average daily net assets:
First $500 million--0.50%
Over $500 million--0.48%
1
7
BUSDOCS/1636407.2
1
BUSDOCS/1636407.2
BUSDOCS/1636407.2
