XXX 00 XXXX XXXXXX TRUST
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
THE 00 XXXX XXXXXX TAX FREE SHORT/INTERMEDIATE FIXED INCOME FUND
AGREEMENT, originally made on the 9th day of June, 1992 as amended and
restated November 1, 1993 between THE 00 XXXX XXXXXX TRUST, a Massachusetts
business trust (the "Trust"), on behalf of The 00 Xxxx Xxxxxx Tax Free
Short/Intermediate Fixed Income Fund (the "Fund"), a series of the Trust, and
XXXXX BROTHERS XXXXXXXX & CO., a New York limited partnership (the "Adviser"),
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the " 1 940
Act"); and
WHEREAS, the Trust desires to retain the Adviser to render investment
advisory services to the Fund, and the Adviser is willing to render such
services;
NOW, THEREFORE, this Agreement
WITNESSETH:
that in consideration of the premises and mutual promises hereinafter set forth,
the parties hereto agree as follows:
1. The Trust here by appoints the Adviser to act as investment adviser
to the Fund for the period and on the terms set forth in this Agreement. The
Adviser accepts such appointment and agrees to render the services herein set
forth, for the compensation herein provided.
2. 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 portfolio of securities and investments, including cash, the
purchase, retention and disposition thereof and agreements relating thereto, in
accordance with the Fund's investment objective and policies as stated in the
Prospectus (as defined in paragraph 3 of this Agreement) and subject to the
following understandings:
(a) the Adviser shall furnish a continuous investment program
for the Fund's portfolio and determine from time to time what
investments or securities will be purchased, retained, sold or lent by
the Fund, and what portion of the assets will be invested or held
uninvested as cash;
(b) the Adviser shall use the same skill and care in the
management of the Fund's portfolio as it uses in the administration of
other accounts for which it has investment responsibility as agent;
(c) the Adviser, in the performance of its duties and
obligations under this Agreement, shall act in conformity with the
Trust's Declaration of Trust and By-Laws and the Prospectus of the Fund
and with the instructions and directions of the Trustees of the Trust
and will conform to and comply with the requirements of the 1940 Act
and all other applicable federal and state laws and regulations
including, without
limitation, the regulations and rulings of the New York State Banking
Department;
(d) the Adviser shall determine the securities to be
purchased, sold or lent by the Fund and as agent for the Fund will
effect portfolio transactions pursuant to its determinations either
directly with the issuer or with any broker and/or dealer in such
securities; in placing orders with brokers and/or dealers the Adviser
intends to seek best price and execution for purchases and sales.
On occasions when the Adviser deems the purchase or sale of a security
to be in the best interest of the Fund as well as other customers, the
Adviser, may, to the extent permitted by applicable laws and
regulations, but shall not be obligated to, aggregate the securities to
be so sold or purchased in order to obtain the best execution and lower
brokerage commissions, if any. 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;
(e) the Adviser shall maintain books and records with respect
to the Fund's securities transactions and shall render to the Trust's
Trustees such periodic and special reports as the Trustees may
reasonably request; and
(f) the investment management services of the Adviser to the
Fund under this Agreement are not to be deemed exclusive, and the
Adviser shall be free to render similar services to others.
3. The Trust has delivered copies of each of the following documents to
the Adviser and will promptly notify and deliver to it all future amendments and
supplements, if any:
(a) Declaration of Trust of the Trust, filed with the
Secretary of the Commonwealth of Massachusetts on June 8, 1983, and
amendments thereto filed on October 27, 1983, August 22, 1984, July 20,
1989, October 24, 1989, February 14, 1991, December 20, 1991 and June
26, 1992 (such Declaration of Trust and amendments, as presently in
effect and as further amended from time to time, are herein called the
"Declaration of Trust");
(b) By-Laws of the Trust (such By-Laws, as presently in effect
and as amended from time to time, are herein called the "ByLaws");
(c) Certified resolutions of the Trustees of the Trust
authorizing the appointment of the Adviser and approving the form of
this Agreement;
(d) Registration Statement under the 1940 Act and the
Securities Act of 1933, as amended, on Form N- I A (No. 33-48606) (the
"Registration Statement") as filed with the Securities and Exchange
Commission (the "Commission") on June 15, 1992 relating to the Trust
and the Fund shares, and all amendments thereto;
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(e) Notification of Registration of the Trust under the 1940
Act on Form N-8A as filed with the Commission on June 24, 1983 and all
amendments thereto; and
(f) Prospectus of the Fund, dated November 1, 1993 (such
prospectus, as presently in effect and as amended or supplemented with
respect to the Fund from time to time, is herein called the
"Prospectus").
4. The Adviser shall keep the Fund's books and records required to be
maintained by it pursuant to paragraph 2(e). The Adviser agrees that all records
which it maintains for the Fund are the property of the Fund and it will
promptly surrender any of such records to the Fund upon the Fund's request. The
Adviser further agrees to preserve for the periods prescribed by Rule 31 a-2 of
the Commission under the 194O Act any such records as are required to be
maintained by the Adviser with respect to the Fund by Rule 3 1 a- I of the
Commission under the 1940 Act.
5. During the term of this Agreement the Adviser will pay all expenses
incurred by it in connection with its activities under this Agreement other than
the cost of securities and investments purchased for the Fund (including taxes
and brokerage commissions, if any).
6. For the services provided and the expenses borne pursuant to this
Agreement, the Adviser will receive from the Fund as full compensation therefor
a fee at an annual rate equal to 0.35% of the Fund's average daily net assets.
This fee will be computed based on net assets at 4:00 P.M. New York time on each
day the New York Stock Exchange is open for trading and New York banks are open
for business and will be paid to the Adviser monthly during the succeeding
calendar month.
7. The Adviser shall not be liable 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, except a loss resulting from a breach of fiduciary
duty with respect to the receipt of compensation for services (in which case any
award of damages shall be limited to the period and the amount set forth in
Section 36(b)(3) of the 0000 Xxx) or a loss resulting from wilful misfeasance,
bad faith or gross negligence on its part in the performance of its duties or
from reckless disregard by it of its obligations and duties under this
Agreement.
8. This Agreement shall continue in effect for two years from the date
of its execution and thereafter, but only so long as its continuance is
specifically approved at least annually in conformity with the requirements of
the 1940 Act; provided, however, that this Agreement may be terminated with
respect to the Fund by the Trust at any time, without the payment of any
penalty, by vote of a majority of all the Trustees of the Trust or by "vote of a
majority of the outstanding voting securities" of the Fund on 60 days written
notice to the Adviser, or by the Adviser 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".
9. The Adviser shall for all purposes herein be deemed to be an
independent contractor and shall, unless otherwise expressly provided herein or
authorized
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by the Trustees of the Trust from time to time, have no authority to act for or
represent the Fund or the Trust in any way or otherwise be deemed an agent of
the Fund or the Trust.
10. This Agreement may be amended by mutual consent, but the consent of
the Trust must be approved (a) by 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
amendment, and (b) by "vote of a majority of the outstanding voting securities"
of the Fund.
11. As used in this Agreement, the terms "assignment", "interested
persons" and "vote of a majority of the outstanding voting securities" shall
have the meanings assigned to them respectively in the 1940 Act.
12. Notices of any kind to be given to the Adviser by the Trust shall
be in writing and shall be duly given if mailed or delivered to the Adviser at
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Treasurer, or at such other
address or to such other individual as shall be specified by the Adviser to the
Trust. Notices of any kind to be given to the Trust by the Adviser shall be in
writing and shall be duly given if mailed or delivered to the Trust at The 00
Xxxx Xxxxxx Trust, 0 Xx. Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Secretary, or at such other address or to such other individual as shall be
specified by the Trust to the Adviser.
13. The Trustees have authorized the execution of this Agreement in
their capacity as Trustees and not individually and the Adviser agrees that
neither the shareholders nor the Trustees nor any officer, employee,
representative or agent of the Trust shall be personally liable upon, nor shall
resort be had to their private property for the satisfaction of, obligations
given, executed or delivered on behalf of or by the Trust, that the
shareholders, Trustees, officers, employees, representatives and agents of the
Trust shall not be personally liable hereunder, and the Adviser shall look
solely to the property of the Trust for the satisfaction of any claim hereunder.
14. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers or Partners designated below on the day and year
first above written.
THE 00 XXXX XXXXXX TRUST
ATTEST: By /s/X.X. XXXXXXX, XX.
XXXXX BROTHERS XXXXXXXX & CO.
ATTEST: By /s/XXXX X. XXXXXXX
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