INVESTMENT ADVISORY AGREEMENT
between
The PARK AVENUE PORTFOLIO, a Massachusetts business trust, having its principal
place of business at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
(hereinafter called "the Company") OF THE ONE PART
and
GUARDIAN XXXXXXX XXXXXXX LIMITED, a company incorporated under the Companies
Acts and having its registered office at 0 Xxxxxxx Xxxxx, Xxxxxxxxx XX0 0XX,
Xxxxxxxx (hereinafter called "the Manager") OF THE OTHER PART
WHEREAS:
(A) The Company is engaged in business as an open-end management
investment company and is registered as such under the U.S. Investment Company
Act of 1940, as amended.
(B) The Company is authorised to issue shares of beneficial interest in
one or more series, the shares of which will represent and correspond to
interests in one or more separate portfolios of securities and other assets held
by the Company.
(C) The Manager is engaged principally in the business of rendering
investment management services and is registered as an investment adviser under
the U.S. Investment Advisers Act of 1940, as amended, and is a member of, and
regulated in the conduct of its investment business by, the Investment
Management Regulatory Organisation Limited.
(D) The Company desires the Manager to render investment management
services to the Company and to those of its Series which are named in written
Fee Appendices as described herein in the manner and on the terms and conditions
hereinafter set forth.
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
1.1 In this Agreement the following words and expressions shall
where not inconsistent with the context have the following meanings
respectively:
(a) "Associate" means and includes any corporation which in
relation to the person concerned (being a corporation) is a Holding
Company or a Subsidiary or a Subsidiary of any such Holding Company
or a corporation (or a Subsidiary of a corporation) at least
one-third of the issued share capital of which is beneficially owned
by the person concerned or an Associate thereof under the preceding
part of this definition and includes any firm the partners of which
or any one or more of them are beneficially entitled whether
directly or indirectly or through the medium of a corporation or
corporations to at least three-quarters of the issued equity share
capital of the person concerned (being a corporation) and includes
any partner in any such firm. Where the person concerned is an
individual, firm or other unincorporated body the expression
"Associate" means and includes
1
any corporation directly or indirectly or through the medium of a
corporation or corporations controlled by such person and any
partner in any such firm;
(b) "Xxxxxxx Xxxxxxx Overseas Limited" means Xxxxxxx Xxxxxxx
Overseas Limited, a company incorporated under the Companies Acts
and having its registered office at 0 Xxxxxxx Xxxxx, Xxxxxxxxx XX0
0XX, Xxxxxxxx.
(c) "Business Day" means a day on which the New York Stock
Exchange is open for business;
(d) "Commencement Date" means 11 January 1993 or, if later,
the date on which a copy of this Agreement signed by or on behalf of
the Manager has been signed by or on behalf of the Company and
returned to the Manager;
(e) "Custodian" means State Street Bank and Trust Company,
Boston, Massachusetts, U.S.A. and its agents and subcustodian banks
or such other bank or banks as may in the future serve as custodian
of the investments;
(f) "Fee Appendix" means the Investment Advisory Fee Appendix
entered into by the Manager and the Company on behalf of a Series,
which sets forth the compensation to be paid by the Series to the
Manager for services rendered hereunder. Each Fee Appendix shall be
subject to the terms and conditions of this Agreement;
(g) "Holding Company" means a holding company as defined in
Section 736 of the Companies Xxx 0000;
(h) "IMRO" means Investment Management Regulatory Organisation
Limited;
(i) "Investments" means the assets and rights from time to
time of each series comprised in the Portfolio of such Series;
(j) "Investment Policy" means the investment objective,
policies and restrictions of a Series which are set out in the
current Registration Statement on Form N-1A as filed with the SEC
and as amended from time to time following written notice given by
the Company to the Manager;
(k) "Portfolio" means the investments and cash which may from
time to time comprise the assets of a Series;
(l) "Rules" means the rules (including any regulations) made
by the board of IMRO, as altered, amended, added to or cancelled
from time to time whether by the board of IMRO or pursuant to the
Financial Services Xxx 0000, together with the Statutory Rules;
(m) "SEC" means the U.S. Securities and Exchange Commission;
(n) "Series" means a separate portfolio of assets of the
Company which has been named in a written Fee Appendix;
(o) "Statutory Rules" means rules or regulations made under
Chapter V of the Financial Services Xxx 0000 which are binding on
the Manager;
(p) "Sub-Investment Advisory Agreement" means the
sub-investment advisory agreement between the Manager and Xxxxxxx
Xxxxxxx Overseas Limited of even date herewith;
2
(q) "Subsidiary" means a subsidiary as defined in Section 736
of the Companies Xxx 0000;
(r) "Trustees" means the Board of Trustees of the Company from
time to time including any duly appointed committee thereof;
(s) "U.S." means the United States of America;
(t) "1940 Act" means the U.S. Investment Company Act of 1940,
as amended;
(u) any reference to the Company, a Series or the Manager
includes a reference to its or their duly authorised agents or
delegates;
(v) words importing the singular number shall be deemed to
include the plural number and vice versa;
(w) words importing the masculine gender only shall include
the feminine gender and vice versa;
(x) words importing persons shall include companies or
associations or bodies of persons, whether corporate or not; and
(y) any reference to this Agreement shall be deemed to be a
reference to this Agreement as it may from time to time be
supplemented by a Fee Appendix.
1.2 The headings to the Clauses of this Agreement are for
convenience only and shall not affect the construction or interpretation
thereof.
1.3 References herein to statutory provisions shall be construed as
references to those provisions as respectively amended or re-enacted from
time to time and shall include any provision of which they are
re-enactments (whether with or without modification).
2. Appointment and Functions of the Manager
2.1 With effect from the Commencement Date the Company hereby
appoints the Manager to be the investment manager of the Portfolio of each
Series, all upon the terms contained herein and the Manager hereby accepts
such appointment and agrees to assume the obligations set forth herein.
2.2 In exercising its functions under this Agreement the Manager
shall at all relevant times consider advice given to it by Xxxxxxx
Xxxxxxx Overseas Limited under the Sub-Investment Advisory Agreement.
2.3 Notwithstanding Clause 2.2 above, any investment activity
undertaken by the Manager pursuant to this Agreement and any other
activities undertaken by the Manager on behalf of the Company or any
series shall at all times be subject to any written directives of the
Trustees, any duly constituted committee thereof or any officer of the
Company acting pursuant to written directives of the Trustees.
3. Investment Management Functions of the Manager
3.1 During the continuance of its appointment as investment manager
of the Portfolio of each Series and without prejudice to the generality of
Clauses 2.1 and 2.3 above the Manager shall:
3
(a) manage the investment and re-investment of the Portfolio
of such Series on a discretionary basis with a view to achieving the
investment objective contained in the Investment Policy;
(b) provide valuations of the Investments of the Series in
accordance with the provisions of Clause 11;
(c) as and when requested by the Company supply the Company
with such information in connection with the Company and each Series
as may be in the possession of the Manager or may reasonably be
obtained from or provided by them;
3.2 The Manager shall subject to Clause 4.1 take such steps as
necessary to implement the Investment Policy of each Series and regularly
report to the Trustees on the implementation of said Investment Policy and
the Manager's activities in accordance with Cause 11 below in connection
with the administration of each Series.
3.3 The Manager shall keep or cause to be kept on behalf of each
Series such books, records and statements to give a complete record of all
transactions carried out by the Manager on behalf of each Series in
relation to the investment and reinvestment of the Portfolio of such
Series and such other books, records and statements as may be required by
law and as may be necessary to give a complete record of all other
transactions carried out by the Manager on behalf of each Series and shall
permit the Company and each Series and their employees and agents and the
auditors for the time being of the Company and each Series to inspect such
books, records and statements at all reasonable times.
3.4 All records required to be maintained and preserved by the
Manager on behalf of each Series or the Portfolio of such Series pursuant
to the provisions of rules or regulations of the SEC under Section 31(a)
of the 1940 Act are the property of the Company and will be surrendered by
the Manager promptly on request by the Company.
3.5 The Manager hereby warrants that it holds and undertakes that it
will continue to hold, all licences, permissions, authorisations and
consents necessary to enable it to carry out its duties hereunder in the
ordinary course of business and that all such licences, permissions,
authorisations and consents are and will remain in full force and effect
during the continuance of this Agreement.
3.6 The services to be provided under this Agreement shall be so
provided on the basis that the Company is a "Non-Private Customer" as
defined in the Rules.
4. Manager's Specific Powers and Obligations in Relation to Investment
Management
4.1 Consistent with the Investment Policy and subject to any written
directions (in accordance with Clause 2.3 above) communicated to the
Manager, the Manager shall have and is hereby granted the authority, power
and right for the Portfolio of each Series and in the name of the Company
and each Series to supervise and direct the investments of each Series in
its discretion and without prior consultation with the Company:
(a) to issue orders and instructions with respect of the
disposition of Investments, moneys and other assets of the Portfolio
of each Series;
(b) to purchase (or otherwise acquire), sell (or otherwise
dispose of) and invest in investments, moneys and other assets for
the account of each Series and effect foreign exchange transactions
on
4
behalf of each Series and for the account of each Series in
connection with any such purchase, other acquisition, sale or other
disposal;
(c) to enter into, make and perform all contracts, agreements
and other undertakings as may in the opinion of the Manager be
necessary or advisable or incidental to the carrying out of the
objectives of this Agreement;
(d) subject to the Rules, to aggregate transactions for the
Portfolio of each Series with those of other clients and Associates
without prior reference to the Company or any Series or such other
clients. Aggregation may operate on some occasions to the advantage
of a Series and on other occasions to the disadvantage of a Series.
Also the Manager may act as agent for the Company and each Series in
relation to transactions in which it is also acting as agent for its
Associates;
(e) to purchase and sell Investments on any Recognised or
Designated Investment Exchange as defined in the Rules (including
for this purpose over the counter markets) or through such other
intermediary as the Manager may in its discretion consider;
(f) to purchase or subscribe for Investments Not Readily
Realisable (as defined in the Rules). However, such investments
carry a high risk of not being readily realisable, market-makers may
not be prepared to deal in them and proper information for
determining their current value may not be available. The purchase
of such investments is subject to such restrictions as may be set
out in this Agreement not inconsistent with the Investment Policy;
(g) to accept offers of new issues, or rights issues and
offers of paper and/or cash alternatives in takeover bids on behalf
of each Series;
(h) to invest in Contingent Liability Transactions and Options
(as defined in the Rules) effected otherwise than under the rules of
a Recognised or Designated Investment Exchange (as defined in the
Rules) or in a contract traded thereon;
(i) for the purposes of carrying out transactions in futures
and options only, to deposit or pledge investments comprised in the
Portfolio of each Series and such other documents of title and
certificates evidencing title to such investments and other property
as may be required in order to satisfy the counterparty's margin or
collateral requirements. In all other circumstances and except (a)
with the written consent of and on terms agreed with the Company or
(b) if appropriate, as may be provided in the Company's current
Registration Statement filed with the SEC (as amended from time to
time) investments comprised in the Portfolio of a Series and
documents of title and certificates evidencing title to such
investments and other property acquired under this Agreement may not
be lent to a third party nor may money be borrowed on the Company's
or a Series' behalf against the security of such investments,
documents and property.
4.2 As Investments may be denominated in different currencies, a
movement of exchange rates may have a separate effect, unfavourable as
well as favourable, on the gain or loss otherwise experienced in the
Investments.
4.3 The Company understands that markets involving Contingent
Liability Transactions can be highly
5
volatile and that such instruments carry a high risk of loss and that a
relatively small adverse market movement may result not only in loss of
the original investment but also an unquantifiable further loss exceeding
any margin deposited. The Company further understands that it may be
required to pay on behalf of a Series a deposit or margin in support of a
transaction or to supplement that payment after the transaction has been
effected and that the consequence of non-payment may result in the loss of
deposit or margin.
4.4 The Company acknowledges receipt of the Risk Disclosure
Statements set out in Schedule 1 hereto.
4.5 The Manager shall observe and comply with all resolutions of the
Trustees of which it has written notice and other lawful orders and
directions given in writing to it from time to time by the Trustees and
all activities engaged in by the Manager hereunder pursuant to Clause 3
above shall at all times be subject to the control of and review by the
Trustees and without limiting the generality of the foregoing the Trustees
may from time to time:
(a) prohibit the Manager from investing the Portfolio of any
Series in any investment or in any currency or country or in or with
any person;
(b) require the Manager to sell any investment or (subject to
the availability of funds) to purchase, on behalf of a Series, any
investment;
(c) amend the Investment Policy of any Series and notify the
Manager of this in writing;
and the Manager shall and shall procure that any person, firm or company
to whom it delegates any of its function hereunder shall give effect to
all such decisions.
5. Payments Due on Investments
The Company shall be responsible on behalf of each Series for any
unpaid calls or other sums which may become payable upon any of the
Investments or any rates, taxes or other imposts or similar liabilities
levied or arising on or in respect of any of the Investments.
6. Cold Calls
The Company and the Manager are free under this Agreement to
telephone, visit or otherwise communicate with each other without express
invitation to discuss the Portfolio of any Series, its composition and
investment policy or changes therein, or any individual investment current
or proposed. This may constitute a "Cold Call" in terms of the Rules.
7. Custody Arrangements
7.1 The Company on behalf of each Series will at the written request
of the Manager arrange for the opening of bank accounts in the name of
each Series with the Custodian. All sums belonging to a Series including
proceeds of sales and income received on investments shall be credited
directly to such accounts. The Manager will hold no moneys on behalf of a
Series, and accepts no liability for any default by the Custodian. These
bank accounts and moneys are not Client Bank Accounts or Clients' Money
(as defined in the Rules).
6
7.2 Securities forming part of the Portfolio of each Series will be
registered in the name of the Custodian or held to its order. The Manager
accepts no liability for any default by the Custodian or sub-custodian
banks.
8. Settlement
The Manager will attend to the settlement and delivery of all
purchases and sales of Investments of each Series and deal with issues,
rights entitlements and any other matters affecting such investments. The
Manager will also be entitled to instruct the Custodian to make delivery
of documents of title or certificates evidencing title when settling
transactions.
9. Voting
Any rights conferred by Investments of a Series shall be exercised
in such manner as the Manager may determine after having considered the
advice of Xxxxxxx Xxxxxxx Overseas Limited, (subject to the rights of the
Trustees to give instruction to the Manager regarding the exercise of
such rights) and subject as aforesaid the Manager may in its discretion
refrain from the exercise of such rights. The Company, on behalf of each
Series, shall from time to time, upon request from the Manager, execute
and deliver or cause to be executed and delivered to the Manager or its
nominee(s) such powers of attorney or proxies as may reasonably be
required authorising such attorneys or proxies to exercise any rights or
otherwise act in respect of all or any part of the Investments. Without
prejudice to the generality of the foregoing the Manager will be entitled
to give voting instructions to the Custodian in respect of the exercise of
any voting or other rights attached to any Investment at the discretion of
the Manager or as the Company may instruct from time to time.
10. Lending and Borrowing
10.1 Subject to the Investment Policy of a Series and as provided in
this Clause 10, investments comprised in the Portfolio of a Series and
documents of title and certificates evidencing title to such investments
and other property acquired under this Agreement may not be lent to a
third party nor may money be borrowed on the Company's or a Series' behalf
against the security of such investments, documents and property.
10.2 Subject to the Investment Policy of a Series, an overdraft
facility or line of credit may be established on behalf of each Series and
may be used as a temporary measure for the extraordinary or emergency
needs of each Series.
10.3 Subject to the Investment Policy of a Series and to the
temporary borrowing facility provided for in 10.2 above, the Manager may
not commit the Company or a Series to supplement the monies in the
Portfolio of the Series either by borrowing on its behalf or by committing
it to a contract the performance of which may require them to supplement
the Portfolio of such Series.
11. Reporting
11.1 The Manager shall arrange to notify the Company by fax of
transactions in each Series on a daily basis and will instruct brokers to
send the original contract note to the Custodian and copies to the Company
and the Manager.
7
11.2 The Manager shall supply quarterly, on a Series by Series
basis, to the Company the following:
(a) reports incorporating inter alia investment policy, which
will be sent within twenty-five working days of the end of the
quarter to which the report relates:
(b) a Portfolio valuation prepared by Datastream or some other
mutually agreed and reputable supplier of valuation services. Such
valuations will show the number of units of each investment or other
asset held, the book cost and the aggregate value of each as at the
valuation date and will normally use middle market prices for listed
investments. In the event of any change in this method the Manager
will notify the Company accordingly;
(c) a statement of any income received on the investments
held;
(d) a schedule detailing the performance of each Series broken
down into major sectors and comparing the return of the relevant
index against the return of each Series. The returns will be
compiled by the WM Company using information supplied by the
Manager; and
(e) schedules showing transactions undertaken during the
period under review.
11.3 The Manager shall attend meetings with the Company from time to
time as required by the Trustees. Instructions as to the management of the
Portfolio of each Series given orally to the Manager at such meetings will
be confirmed in writing to the Manager as provided for in Clause 23.
12. Material Interests
12.1 Except as provided in Clause 4.1(d) of this Agreement, the
Manager may not effect transactions for the Portfolio of a Series in which
it has directly or indirectly a material interest or any relationship with
another party which may involve a conflict of the Manager's duty to the
Company and each Series without prior reference to the Company, other than
transactions in units in unit trusts managed by Xxxxxxx Xxxxxxx & Co.
Limited, an Associate of the Manager, in accordance with the provisions of
sub-clause 12.2 of this Agreement.
12.2 For the purposes of sub-clause 12.1 of this Agreement the
Manager may not effect transactions for the Portfolio in units in unit
trusts managed by Xxxxxxx Xxxxxxx & Co. Limited unless the Manager shall
first have been issued with an order of exemption by the SEC in accordance
with sub-section 17(a)(1)(b) of the 1940 Act.
13. Relevant Arrangements
The Manager may not effect transactions for the Portfolio of any
Series with or through the agency of a person who provides services under
any arrangement where that person will from time to time provide to or
procure for the Manager services or other benefits which result, or are
designed to result, in an improvement in the services which the Manager
provides to its clients and for which it may make no direct payment but
may undertake to place business with that person.
8
14. Fees
In consideration for the services to be provided by the Manager
under this Agreement each Series shall, during the continuance of this
Agreement, pay to the Manager fees calculated by reference to the value of
the Portfolio of each Series all in accordance with the provisions set
forth in the applicable Fee Appendix. All such Fee Appendices shall
provide that they are subject to all terms and conditions of this
Investment Advisory Agreement.
Compensation under this Agreement and the related Fee Appendices for
all Series shall be calculated and accrued daily and the amounts of the
daily accruals shall be paid quarterly, or at such other intervals agreed
to by the parties. If this Agreement becomes effective with respect to a
Series subsequent to the first day of a quarter or shall terminate before
the last day of a quarter, compensation for that part of the quarter
during which this Agreement is in effect shall be prorated in a manner
consistent with the calculation of the fees as set forth in the applicable
Fee Appendix.
15. Taxation
Bank statements and vouchers for each Series will be sent by the
Custodian to the Company to enable the Company to reclaim any credits in
respect of or tax deducted from the income of the Portfolio of such
Series.
16. Term and Termination of the Agreement
16.1 The term of this Agreement shall begin on 11 January 1993,
provided that, with respect to any Series, this Agreement shall not take
effect unless it has first been approved by the Trustees, including a
majority of the Trustees who are not "interested persons" (as defined in
the 0000 Xxx) and by a majority of the outstanding voting securities of
that Series (as defined in the 0000 Xxx) and unless sooner terminated as
hereinafter provided, this Agreement shall remain in effect until 1
January 1995. Thereafter, this Agreement shall continue in effect from
year to year with respect to a Series, subject to the termination
provisions and all other terms and conditions hereof, provided such
continuance is approved at least annually by the vote of holders of a
majority of the outstanding voting securities of such Series (as defined
in the 0000 Xxx) or by the Trustees, provided that in either event, such
continuance is also approved annually by the vote of a majority of the
Trustees who are not parties to this Agreement and are not "interested
persons" (as defined in the 0000 Xxx) of any party, which vote must be
cast in person at a meeting called for the purpose of voting on such
approval. The Manager shall furnish to the Company, on behalf of each
Series, promptly upon its request, such information as may reasonably be
necessary to evaluate the terms of this Agreement or any extension,
renewal or amendment hereof.
16.2 Subject to Clauses 16.3 and 16.4 below, the Company may, at any
time and without the payment of any penalty, terminate this Agreement on
behalf of a Series upon sixty (60) days written notice to the Manager,
either by majority vote of the Trustees or by the vote of a majority of
the outstanding voting securities of such Series (as defined in the 1940
Act).
16.3 The Company, on behalf of each Series, shall also be entitled
to terminate forthwith the appointment of the Manager hereunder
notwithstanding any period remaining in accordance with this Clause or, no
notice having been given:
9
i) if the Manager shall commit any material breach of its
obligations under this Agreement and (if such breach shall be
capable of remedy) shall fail within thirty days of receipt of
notice in writing served by the Company requiring it so to do to
make good such breach;
ii) if an order is made or a resolution passed to wind up the
Manager or if a receiver is appointed to the whole or any part of
the property and undertaking of the Manager;
iii) if the Shareholders Agreement between The Guardian
Insurance & Annuity Company, Inc., Xxxxxxx Xxxxxxx Overseas Limited
and the Manager dated 7 November 1990 is terminated.
16.4 The Manager may terminate this Agreement with respect to a
Series without payment of penalty upon sixty days written notice to the
Company.
16.5 The Manager shall also be entitled to terminate forthwith this
Agreement with respect to a Series, notwithstanding any period remaining
in accordance with this Clause or, no notice having been given, if (i) the
said Shareholders Agreement between The Guardian Insurance & Annuity
Company, Inc., Xxxxxxx Xxxxxxx Overseas Limited and the Manager is
terminated or expires by effluxion of time, or (ii) an order is made or
resolution passed to wind up the Company or such Series, or (iii) if the
Company shall commit any material breach of its obligations under this
Agreement and (if such breach shall be capable of remedy) shall fail
within 30 days of receipt of notice in writing served by the firm
requiring it so to do to make good such breach.
16.6 Termination of this Agreement as detailed in this Clause with
respect to any Series shall in no way affect the continued validity of
this Agreement or the performance thereunder with respect to any other
Series.
16.7 This Agreement shall immediately terminate in the event of its
assignation or assignment (as that term is defined in the 1940 Act) by
either party unless such automatic termination shall be prevented by an
exemptive order or rule of the SEC.
16.8 On the termination of the appointment of the Manager under the
provisions of this Clause the Manager shall be entitled to receive all
fees accrued due up to the date of such termination but shall not, in the
case of termination under any sub-clauses 16.2, 16.3 or 16.4 above, be
entitled to compensation in respect of such termination.
16.9 On termination of the appointment of the Manager under the
provisions of this Clause the Manager shall deliver to the Company, or as
it shall direct, all books of account, records, registers, correspondence,
documents and assets in relation to the affairs of or belonging to the
Company or any Series in possession of or under the control of the Manager
as investment manager and take all necessary steps to vest in each Series
any assets previously held in the name of or to the order of the Manager
as investment manager on behalf of each Series.
16.10 Termination of the appointment of the Manager hereunder shall
be without prejudice to transactions already initiated, which transactions
shall be completed.
16.11 The Company and the Manager will co-operate with each other to
ensure that transactions in progress at the date of termination of the
Manager's appointment hereunder shall be completed by the Company in
accordance with the terms of such transactions and, to this end, the
Manager shall provide the Company with all necessary information and
documentation to secure implementation thereof.
10
17. Continuation and Exercise of Manager's Powers
The authorities herein contained are continuing ones and shall
remain in full force and effect until revoked by termination of this
Agreement as hereinbefore provided but such revocation shall not affect
any liability in any way resulting from transactions initiated prior to
such revocation.
18. Non-Exclusivity
18.1 The services of the Manager hereunder are not to be deemed
exclusive and the Manager or any Associate thereof shall be free to render
investment management services, investment advisory services and corporate
administrative services to other parties (including without prejudice to
the generality of the foregoing other investment companies) on such terms
as the Manager or such Associate may arrange so long as its services under
this Agreement are not thereby impaired and to retain for its own use and
benefit fees or other moneys payable thereby. The Manager shall not be
deemed to be affected with notice of or to be under any duty to disclose
to the Company any fact or thing which may come to the notice of it or any
servant or agent of it in the course of the Manager rendering the said
services to others or in the course of its business in any other capacity
or in any manner whatsoever otherwise than in the course of carrying out
its duties under this Agreement.
18.2 The Manager agrees to permit individuals who are directors or
officers of the Manager to serve as trustees or officers of the Company.
19. Indemnity
19.1 Neither the Manager nor any of its officers, directors, or
employees, nor any person performing executive, administrative, trading,
or other functions for the Company or any Series (at the direction or
request of the Manager) or the Manager in connection with the Manager's
discharge of its obligations undertaken or reasonably assumed with respect
to this Agreement, shall be liable for any error of judgment or mistake of
law or for any loss suffered by the Company or any Series in connection
with the matters to which this Agreement relates, except for loss
resulting from wilful misfeasance or misconduct, wilful default, bad
faith, or gross negligence in the performance of its or his/her duties on
behalf of the Company or any Series or from reckless disregard by the
Manager or any such person of the duties of the Manager under this
Agreement.
19.2 The Manager shall not be liable for the consequences of any
investment decision made hereunder or in respect of any other fund managed
by the Manager or any of its Associates which is a permitted investment
hereunder. The Manager acts only as agent for the Company and each Series
and the Company hereby undertakes to indemnify the Manager against all
actions, proceedings, claims, demands, costs and expenses which may be
brought against, suffered or incurred by the Manager by reason of its
performance of such duties, including all legal, professional and other
expenses incurred.
19.3 Notwithstanding the provisions of Clause 19.2 the Manager will
indemnify the Company and each
11
Series in respect of any loss incurred as a result of negligence or fraud
by the Manager or any of its Associates or their respective employees in
their performance of the duties under the terms of this Agreement.
20. Complaints
20.1 The Manager has established procedures in accordance with the
requirements of IMRO for the effective consideration of complaints by the
Company.
20.2 Should the Company wish to make a complaint to the Manager
about any aspect of the Manager's carrying out of its duties under this
Agreement or otherwise, it shall, in the first instance, do so by letter
addressed to the director or directors of the Manager responsible for the
management of the Portfolio of the Series in question. If no satisfactory
resolution of the complaint is achieved within five days, the Company may
reiterate the complaint by letter addressed to the Chairman of the
Manager. If no satisfactory resolution is achieved within ten days of the
original complaint, the Company shall then make its complaint to IMRO.
Notwithstanding the above provisions the Company has a right of complaint
direct to IMRO at any time.
20.3 A booklet setting out the Company's right to investor's
compensation under the Securities and Investments Board's Scheme is
available on request from the Manager.
21. Delegation
The Manager is authorised to delegate any or all of the obligations
incumbent upon it in terms of this Agreement to Xxxxxxx Xxxxxxx Overseas
Limited provided that such delegation is effected by way of a
sub-investment advisory agreement in the form or as near as in the form of
Schedule 2 annexed hereto.
22. Confidentiality
Neither of the parties hereto shall during the continuance of this
Agreement or after its termination disclose to any person, firm or fund
whatsoever (except with the authority of the relevant party or unless
ordered to do so by a court of competent jurisdiction or any regulatory
body) any information relating to the business, investments, finances or
other matters of a confidential nature of the other party of which it may
in the course of its duties hereunder or otherwise become possessed and
each party shall use all reasonable endeavours to prevent any such
disclosure as aforesaid.
23. Reliance on Documents
Whenever pursuant to any provision of this Agreement any notice,
instruction or other communication is to be given by, or on behalf of, the
Company (or its Trustees) to the Manager, the Manager may accept as
sufficient evidence thereof:
i) a document signed or purporting to be signed on behalf of
the issuing party by such person or persons whose signature the
Manager is for the time being authorised by such issuing party to
accept; or
ii) a message by tested telexcopier, facsimile machine or
cable transmitted by, or on behalf of, the Company (or its Trustees)
by such person or persons whose messages the Manager is for the time
being authorised by the Company or its Trustees to accept, and the
Manager shall not be
12
obliged to accept any document or message signed or transmitted or
purporting to be signed or transmitted by any other person.
24. Severability
If any of the provisions of this Agreement is found by an arbiter,
court or other competent authority to be void or unenforceable, such
provision shall be deemed to be deleted from this Agreement and the
remaining provisions of this Agreement shall continue in full force and
effect.
Notwithstanding the foregoing the parties shall thereon negotiate in
good faith in order to agree to the terms of a mutually satisfactory
provision to be substituted for the provision so found to be void or
unenforceable.
25. Amendments
This Agreement may be amended by mutual consent, but no amendment
shall be effective as to any given Series until it is approved by vote of
a majority of such Series' outstanding voting securities, and by the vote
of a majority of the members of the Board of Trustees, including a
majority of the Trustees who are not deemed to be "interested persons" (as
defined by the 1940 Act). Notwithstanding the foregoing, where the effect
of a requirement of the 1940 Act which is reflected in any provision of
this Agreement is relaxed by a rule, regulation or order of the SEC,
whether of special or general application, such provision shall be deemed
to incorporate the effect of such rule, regulation or order.
26. Notices
Any notice required to be given under this Agreement shall be in
writing, delivered personally or sent by first class prepaid letter or
transmitted by telex or facsimile and shall be deemed duly served if left
at or sent or (as appropriate) transmitted to the following addresses (or
to the most recent of any other address of which a party hereto shall have
given notice to the other party pursuant to this Clause):
(a) if to the Company at:
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx 00000
X.X.X.
For the attention of: X.X. Xxxxx
Facsimile number: 000-000-0000
(b) if to the Manager at:
0 Xxxxxxx Xxxxx
Xxxxxxxxx XX0 0XX
Xxxxxxxx
For the attention of: X. Xxxxxxx
Facsimile number: 031-222-4099
Notices sent by first class air mail prepaid letter shall be deemed
to be served seven business days after posting. Evidence that the Notice
was properly addressed, stamped and put into post shall be conclusive
evidence of posting. A notice sent by facsimile transmission shall be
deemed to have been served at the time
13
when a complete and legible copy is received by the addressee. In this
Clause "business day" means a day on which normal banking business is
carried on in Edinburgh and New York City.
27. Arbitration
If any dispute shall arise between the parties as to the true intent
or meaning or the implementation or termination of this Agreement or any
part thereof in any manner of way, such dispute shall be referred to a
single Arbiter to be nominated by the President for the time being of the
Law Society of Scotland on the application of either party hereto and all
decisions and awards of such arbiter both interim and final shall be
binding upon all parties who hereby respectively undertake to implement
and fulfil the same. Section 3(3) of the Administration of Justice
(Scotland) Act 1972 shall not apply to this Agreement.
28. Miscellaneous
28.1 The Manager and the Company each agree that the words "The
Guardian," which may comprise a component of a Series' name, is a property
right of The Guardian Life Insurance Company of America ("Guardian Life").
In this regard, the Company, on behalf of itself and each Series, agrees
and consents to the following: (a) the words "The Guardian" will only be
used as a component of a name and for no other purpose; (b) the Company
will not purport to grant to any third party the right to use the "The
Guardian" for any purpose; (c) Guardian Life, the Manager or any other
duly authorized affiliate of Guardian Life may use or grant to others the
right to use the words "The Guardian," or any combination or abbreviation
thereof, as all or a portion of a corporate or business name or for any
commercial purpose, including a grant of such right to any other
investment company; and (d) upon the termination of any investment
advisory agreement into which the Manager and the Company may enter, or
upon the termination of any such investment advisory agreement with
respect to a Series of the Company, or upon termination of the affiliation
of the Manager with Guardian Life, the Company and any affected Series of
the Company shall, upon request by the Manager or Guardian Life, cease to
use the words "The Guardian" as a name component, and shall not use such
words or any combination thereof, as part of a name or for any other
commercial purpose, and shall take any and all actions which the Manager
or Guardian Life may request to effect the foregoing and to reconvey to
Guardian Life any and all rights to the words "The Guardian."
28.2 All persons extending credit to, contracting with or having any
claim against the Company, its Series or the Trustees shall look only to
the assets of the Company or the Series, as the case may be, for payment
under such credit, contract or claim. Neither the shareholders nor the
Trustees, nor any of their agents, whether past, present or future, shall
be personally liable for payment of any such credit, contract or claim.
The obligations of the Company and each Series hereunder may be satisfied
only by resort to the assets of the Company as divided among the Series.
29. Governing Law
Notwithstanding any conflict of laws, principles or provisions which
may otherwise apply, this Agreement and the rights and obligations of the
parties shall be governed by and are to be construed in accordance with
the law of Scotland and, to the extent applicable, in accordance with the
1940 Act: IN WITNESS
14
WHEREOF these presents typewritten on this and the preceding
pages are, together with the Schedules, executed in triplicate as follows:
they are subscribed for and on behalf of Guardian Xxxxxxx Xxxxxxx Limited
by, one of its , at Edinburgh, Scotland on January 1993
before these witnesses, , xx , Xxxxxxxxx xxx xx ,
Xxxxxxxxx; and they are subscribed for and on behalf of The Park
Avenue Portfolio by Xxxxx X. Xxxxx, one of its officers at New York,
United States of America on January 1993 before these witnesses,
Xxxxxxx X. Xxxxxx, Xx., and Xxxxxx Xxxxxxxx both of 000 Xxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx.
For The Park Avenue Portfolio:
/s/ Xxxxx X. Xxxxx
-----------------------------
/s/ Xxxxxxx X Xxxxxx Xx. Witness
------------------------
/s/ Xxxxxx Xxxxxxxx Witness
------------------------
For Guardian Xxxxxxx Xxxxxxx Limited:
__________________________Witness __________________________
__________________________Witness
15
INVESTMENT ADVISORY AGREEMENT FEE APPENDIX
Fee Appendix made as of January 11, 1993, between THE PARK AVENUE
PORTFOLIO, a Massachusetts business trust (the "Company"), on behalf of The
Guardian Xxxxxxx Xxxxxxx International Fund ("Series"), a series of shares of
beneficial interest of the Company, and GUARDIAN XXXXXXX XXXXXXX LIMITED (the
"Manager"), a company incorporated under the Companies Act and registered as an
investment adviser under the U.S. Investment Advisers Act of 1940, as amended.
WHEREAS the Company has appointed the Manager as investment adviser and
administrator for each series of shares of beneficial interest of the Company
for which it may enter into a Fee Appendix pursuant to the Investment Advisory
Agreement dated January 11, 1993 between the Company and the Manager
("Investment Advisory Agreement"); and
WHEREAS the Series has been established as a series of shares of the
Company; NOW, THEREFORE, the parties agree as follows:
1. The Investment Advisory Agreement is hereby adopted for the Series. The
Series shall be one of the "Series" referred to in the Investment Advisory
Agreement. Certain capitalized terms used without definition in this Fee
Appendix have the meaning specified in the Investment Advisory Agreement.
2. For the services provided and the expenses assumed pursuant to the
Investment Advisory Agreement with respect to the Series, and subject to
paragraph 3 hereof, the Series will pay to the Manager a fee (exclusive of Value
Added Tax), computed daily and paid quarterly (or at such other intervals as the
parties may from time to time agree), at the monthly rate of one fifteenth of
one percent of:
A where:
----
B
"A" means the aggregate of the Values of the Portfolio as at the close of
business on each Business Day falling in that quarter; and
"B" means the number of Business Days falling in that quarter.
3. From the fee calculated above there shall be deducted sums representing
a pro rata share of the management charge arising on any unit trust managed by
Xxxxxxx Xxxxxxx & Co. Limited in which the Series may be invested from time to
time. Each such deduction shall be calculated as follows:
M x C x D
------
365
Where M is the average daily market value of a holding in a unit trust
managed by Xxxxxxx Xxxxxxx & Co. Limited included in the valuation on
which the calculation of the fee is based.
C is the factor described as a percentage and applied to the value of
assets of the unit trust managed by Xxxxxxx Xxxxxxx & Co. Limited in
calculating its annual management fee.
D is the number of days in which the holding in the Series has been held
during the period to which the fee relates.
No initial charge will be made for any investment in such unit trust.
4. The Manager shall procure that a sum equal to each deduction under
paragraph 3 above shall be paid by Xxxxxxx Xxxxxxx & Co. Limited to the Manager.
Said sum payable to the Manager shall be invoiced by the Manager to Xxxxxxx
Xxxxxxx & Co. Limited following the end of each quarter and shall be due and
payable within ten days of the relevant invoice.
5. Said fees due to the Manager shall be invoiced by the Manager to the
Series following the end of each quarter and shall be due and payable within ten
days of the relevant invoice. The Series shall be entitled to make such payments
on account as it may in its absolute discretion determine.
6. For the purposes of paragraph 2 above:
(i) the "Value of the Portfolio" means the aggregate of the values of the
assets of the Portfolio of the Series at the close of business on a Business
Day. The aggregate of the values of the assets shall be calculated by taking the
value of securities held in the Portfolio of the Series, plus any cash or other
assets (including dividends payable and declared but not collected) less all
liabilities (including accrued expenses, but excluding capital and surplus);
(ii) the "value of an asset" shall be taken:
(1) in the case of an investment quoted on a Stock Exchange where
market price is the recognised basis of quotation, at the price of such
investment at the close of business of the appropriate exchange on the
relevant Valuation Date or, if there have been no sales during the day, at
the mean of the closing bid and asked prices;
(2) in the case of an investment traded only on the
over-the-counter market, at the mean between the bid and asked prices;
(3) in the case of unquoted investments and other investments for
which market quotations are not readily available, at the value
ascertained in accordance with such manner as the Trustees have deemed
appropriate to reflect the fair value thereof;
(iii) when any asset is held or liability is outstanding in a currency
other than U.S. dollars, such asset or liability shall be notionally converted
into the U.S. dollar equivalents at the prevailing market rates quoted by the
Custodian at the close of business on the Business Day, on the relevant
Valuation Date or, if such Valuation Date is not a Business Day, on the
immediately preceding Business Day.
7. The Manager shall procure that Xxxxxxx Xxxxxxx & Co. shall be
responsible for furnishing such office space, facilities and equipment and such
clerical help, administrative and bookkeeping services in Edinburgh as the
Series shall reasonably require in the conduct of its business in accordance
with the Administrative and Secretarial Agreement between Xxxxxxx Xxxxxxx & Co.
and the Manager.
8. The Series shall bear all expenses of its organization, operations and
business not specifically assumed or agreed to be paid by the Manager as
provided in this Fee Appendix. In particular, but without limiting the
generality of the foregoing, the Series shall pay all of the expenses relating
to the following expense categories: custody and accounting services;
shareholder servicing agent; transfer and dividend disbursing agent; shareholder
communications; shareholder meetings; prospectuses; calculation of net asset
value; legal fees and expenses; accounting fees and expenses; trustees' fees and
expenses; federal and state registration fees; bonding and insurance; brokerage
commissions; taxes; trade association fees; nonrecurring and extraordinary
expenses (including but not limited to, legal claims and liabilities and
litigation costs and any indemnification related thereto); and all other charges
relating to the operation of the Series unless otherwise specifically provided
herein. All such expenses shall be paid out of the assets of the Series.
9. This Fee Appendix shall be subject to all terms and conditions of the
Investment Advisory Agreement.
10. This Fee Appendix shall become effective upon the date hereabove
written, provided that it shall not take effect unless it has first been
approved (i) by a vote of the Trustees of the Company, including a majority of
those Trustees of the Company who are not parties to this Fee Appendix or the
Investment Advisory Agreement or
interested persons of any such persons at a meeting called for the purpose of
such approval and (ii) by vote of a majority of the Series' outstanding voting
securities.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated as of the day and year first above
written.
FOR THE PARK AVENUE PORTFOLIO on behalf of
THE GUARDIAN XXXXXXX XXXXXXX INTERNATIONAL FUND:
[ILLEGIBLE]
------------------------------------------------
/s/ Xxxxxxx X. Xxxxxx Witness
----------------------
/s/ Xxxxxx Xxxxxxxx Witness
---------------------
FOR GUARDIAN XXXXXXX XXXXXXX LIMITED:
_____________________________________
__________________________Witness
__________________________Witness
