EXHIBIT 5(b)
XXXXXXX XXXXX TRUST
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
April 30, 1997
Xxxxxxx Sachs Funds Management, L.P.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
MANAGEMENT AGREEMENT
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XXXXXXX XXXXX ADJUSTABLE RATE GOVERNMENT FUND
Dear Sirs:
Xxxxxxx Sachs Trust (the "Registrant") is organized as a business trust under
the laws of the state of Delaware to engage in the business of an investment
company. The shares of the Registrant ("Shares") may be divided into multiple
series ("Series"), including the Xxxxxxx Xxxxx Adjustable Rate Government Fund
(the "Fund"), as established pursuant to a written instrument executed by the
Trustees of the Registrant. Shares of each Series will represent interests in a
separate portfolio of securities and other assets. Series may be terminated,
and additional Series established, from time to time by action of the Trustees.
The Registrant on behalf of the Fund has selected you to act as the investment
adviser and administrator of the Fund and to provide certain services, as more
fully set forth below, and you are willing to act as such investment adviser and
administrator and to perform such services under the terms and conditions
hereinafter set forth. Accordingly, the Registrant agrees with you as follows:
1. Name of Registrant. The Registrant may use any name including or
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derived from the name "Xxxxxxx Sachs" in connection with the Fund only for so
long as this Agreement or any extension, renewal or amendment hereof remains in
effect, including any similar agreement with any organization which shall have
succeeded to your business as investment adviser or administrator. Upon the
termination of this Agreement, the Registrant(to the extent that it lawfully
can) will cause the Fund to cease to use such a name or any other name
indicating that it is advised by or otherwise connected with you or any
organization which shall have so succeeded to your business.
2. Sub-Advisers. You may engage one or more investment advisers which are
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either registered as such or specifically exempt from registration under the
Investment Company Act of 1940, as amended, to act as sub-advisers to provide
with respect to the Fund certain services set forth in Paragraphs 3 and 6
hereof, all as shall be set forth in a written contract to which the Registrant,
on behalf of the Fund, and you shall be parties, which contract shall be subject
to approval by the vote of a majority of the Trustees who are not interested
persons of you, the sub-adviser, or of the Registrant, cast in person at a
meeting called for the purpose of voting on such approval and by the vote of a
majority of the outstanding voting securities of the Fund and otherwise
consistent with the terms of the Investment Company Act of 1940, as amended (the
"1940 Act")
3. Management Services.
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(a) You will regularly provide the Fund with investment research,
advice and supervision and will furnish continuously an
investment program for the Fund consistent with the investment
objectives and policies of the Fund. You will determine from
time to time what securities shall be purchased for the Fund,
what securities shall be held or sold by the Fund, and what
portion of the Fund's assets shall be held uninvested as cash,
subject always to the provisions of the Registrant's Declaration
of Trust and By-Laws and of the 1940 Act, and to the investment
objectives, policies and restrictions of the Fund, as each of the
same shall be from time to time in effect, and subject, further,
to such policies and instructions as the Trustees may from time
to time establish.
(b) Subject to the general supervision of the Trustees of the
Registrant, you will provide certain administrative services to
the Fund. You will, to the extent such services are not required
to be performed by others pursuant to the custodian agreement (or
the transfer agency agreement to the extent that a person other
than you is serving thereunder as the Registrant's transfer
agent), (i) provide supervision of all aspects of the Fund's
operations not referred to in paragraph (a) above; (ii) provide
the Fund with personnel to perform such executive, administrative
and clerical services as are reasonably necessary to provide
effective administration of the Fund; (iii) arrange for, at the
Registrant's expense, (a) the preparation for the Fund of all
required tax returns, (b) the preparation and submission of
reports to existing shareholders and (c) the periodic updating of
the Fund's prospectus and statement of additional information and
the preparation of reports filed with the Securities and Exchange
Commission and other regulatory authorities; (iv) maintain all
of the Fund's records; and (v) provide the Fund with adequate
office space and all necessary office equipment and services
including telephone service, heat, utilities, stationery supplies
and similar items.
(c) You will maintain all books and records with respect to the
Fund's securities transactions required by sub-paragraphs (b)(5),
(6), (9) and (10) and paragraph (f) of Rule 31a-1 under the 1940
Act (other than those records being maintained by the Fund's
custodian or transfer agent) and preserve such records for the
periods prescribed therefor by Rule 31a-2 of the 1940 Act. You
will also provide to the Registrant's Trustees such periodic and
special reports as the Board may reasonably request. You shall
for all purposes herein be deemed to be an independent contractor
and shall, except as otherwise expressly provided or authorized,
have no authority to act for or represent the Registrant in any
way or otherwise be deemed an agent of the Registrant.
(d) Your services hereunder are not deemed exclusive and you shall be
free to render similar services to others.
(e) You will notify the Registrant of any change in your membership
within a reasonable time after such change.
4. Allocation of Charges and Expenses. You will pay all costs incurred
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by you in connection with the performance of your duties under
paragraph 3. You will pay the compensation and expenses of all
personnel of yours and will make available, without expense to the
Registrant, the services of such of your partners, officers and
employees as may duly be elected officers or Trustees of the
Registrant, subject to their individual consent to serve and to any
limitations imposed by law. You will not be required to pay any
expenses of the Registrant other than those specifically allocated to
you in this paragraph 4. In particular, but without limiting the
generality of the foregoing, you will not be required to pay: (i)
organization expenses of the Registrant; (ii) fees and expenses
incurred by the Registrant in connection with membership in investment
company organizations; (iii) brokers' commissions; (iv) payment for
portfolio pricing services to a pricing agent, if any; (v) legal,
auditing or accounting expenses (including an allocable portion of the
cost of your employees rendering legal and accounting services to the
Registrant); (vi) taxes or governmental fees; (vii) the fees and
expenses of the transfer agent of the Registrant; (viii) the cost of
preparing stock
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certificates or any other expenses, including clerical expenses of
issue, redemption or repurchase of Shares of the Registrant; (ix) the
expenses of and fees for registering or qualifying Shares for sale and
of maintaining the registration of the Registrant and registering the
Registrant as a broker or a dealer; (x) the fees and expenses of
Trustees of the Registrant who are not affiliated with you; (xi) the
cost of preparing and distributing reports and notices to
shareholders, the Securities and Exchange Commission and other
regulatory authorities; (xii) the fees or disbursements of custodians
of the Registrant's assets, including expenses incurred in the
performance of any obligations enumerated by the Declaration of Trust
or By-laws of the Registrant insofar as they govern agreements with
any such custodian; or (xiii) litigation and indemnification expenses
and other extraordinary expenses not incurred in the ordinary course
of the Registrant's business. You shall not be required to pay
expenses of activities which are primarily intended to result in sales
of Shares of the Fund.
5. Compensation of the Manager.
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(a) For all services to be rendered and payments made as provided in
paragraphs 3 and 4 hereof, the Registrant, on behalf of the Fund
will pay you on the last day of each month a fee at an annual
rate equal to .40% per annum of the average daily net assets of
the Fund. The "average daily net assets" of the Fund shall be
determined on the basis set forth in the Fund's prospectus or
otherwise consistent with the 1940 Act and the regulations
promulgated thereunder.
(b) If, in any fiscal year, the sum of the Fund's expenses (including
the fee payable pursuant to this paragraph 5, but excluding
taxes, interest, brokerage commissions relating to the purchase
or sale of portfolio securities, distribution expenses and
extraordinary expenses such as for litigation) exceeds the
expense limitations, if any, applicable to the Fund imposed by
state securities administrators, as such limitations may be
modified from time to time, you shall reimburse the Fund in the
amount of such excess to the extent required by such expense
limitations, provided that the amount of such reimbursement shall
not exceed the amount of your fee during such fiscal year.
(c) In addition to the foregoing, you may from time to time agree not
to impose all or a portion of your fee otherwise payable
hereunder (in advance of the time such fee or portion thereof
would otherwise accrue) and/or undertake to pay or reimburse the
Fund for all or a portion of its expenses not otherwise required
to be borne or xxxx bursed by you. Any such fee reduction or
undertaking may be discontinued or modified by you at any time.
6. Avoidance of Inconsistent Position. In connection with purchases or
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sales of portfolio securities for the account of the Fund, neither you
nor any of your partners, officers or employees will act as a
principal, except as otherwise permitted by the 1940 Act. You or your
agent shall arrange for the placing of all orders for the purchase and
sale of portfolio securities for the Fund's account with brokers or
dealers (including Xxxxxxx, Sachs & Co.) selected by you. In the
selection of such brokers or dealers (including Xxxxxxx, Xxxxx & Co.)
and the placing of such orders, you are directed at all times to seek
for the Fund the most favorable execution and net price available. It
is also understood that it is desirable for the Fund that you have
access to supplemental investment and market research and security and
economic analyses provided by brokers who may execute brokerage
transactions at a higher cost to the Fund than may result when
allocating brokerage to other brokers on the basis of seeking the most
favorable price and efficient execution. Therefore, you are
authorized to place orders for the purchase and sale of securities for
the Fund with such
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brokers, subject to review by the Registrant's Trustees from time to
time with respect to the extent and continuation of this practice. It
is understood that the services provided by such brokers may be useful
to you in connection with your services to other clients. If any
occasion should arise in which you give any advice to your clients
concerning the Shares of the Fund, you will act solely as investment
counsel for such clients and not in any way on behalf of the Fund.
You may, on occasions when you deem the purchase or sale of a security
to be in the best interests of the Fund as well as your other
customers (including any other Series or any other investment company
or advisory account for which you act as an investment 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 you in the manner you consider to
be the most equitable and consistent with your fiduciary obligations
to the Fund and to such other customers.
7. Limitation of Liability of Manager You shall not be liable for any
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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 willful misfeasance, bad faith or gross
negligence on your part in the performance of your duties or from
reckless disregard by you of your obligations and duties under this
Agreement. Any person, even though also employed by you, who may be
or become an employee of and paid by the Registrant or the Fund shall
be deemed, when acting within the scope of his employment by the
Registrant, to be acting in such employment solely for the Registrant
and not as your employee or agent.
8. Duration and Termination of this Agreement. This Agreement shall
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remain in force until June 30, 1998 and shall continue for periods of
one 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 interested persons (as defined in the 0000
Xxx) of the Registrant and have no financial interest in this
Agreement, cast in person at a meeting called for the purpose of
voting on such approval and (b) by a vote of a majority of the
Trustees or 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, on 60 days' written notice to the
other party, be terminated at any time without the payment of any
penalty, by the Trustees of the Registrant, by vote of a majority of
the outstanding voting securities of the Fund, or by you. This
Agreement shall automatically terminate in the event of its
assignment. In interpreting the provisions of this Agreement, the
definitions contained in Section 2(a) of the 1940 Act (particularly
the definitions of "interested 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 Securities and Exchange Commission by any rule,
regulation or order.
9. Amendment of this Agreement. No provisions of this Agreement may be
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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. No amendment
of this Agreement shall be effective until approved by vote of the
holders of a majority of the outstanding voting securities of the Fund
and by a majority of the Trustees, including a majority of the
Trustees who are not interested persons (as defined in the 0000 Xxx)
of the Registrant and have no financial interest in this Agreement,
cast in person at a meeting called for the purpose of voting on such
amendment.
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10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
11. Miscellaneous. The captions in this Agreement are included for
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convenience of reference only and in no way define or delimit 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.
The name Xxxxxxx Xxxxx Trust is the designation of the Trustees for the
time being under an Declaration of Trust dated January 28, 1997 as amended from
time to time, and all persons dealing with the Registrant or the Fund must look
solely to the property of the Registrant or the Fund for the enforcement of any
claims against the Registrant as neither the Trustees, officers, agents or
shareholders assume any personal liability for obligations entered into on
behalf of the Registrant. The Fund shall not be liable for any claims against
any other Series of the Registrant.
If you are in agreement with the foregoing, please sign the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Registrant, whereupon this letter shall become a binding
contract.
Yours very truly,
XXXXXXX SACHS TRUST
(ON BEHALF OF XXXXXXX XXXXX ADJUSTABLE RATE GOVERNMENT FUND)
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Grip
Attest______________________________ By:______________________________
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Grip
Secretary of the Registrant President of the Registrant
The foregoing Agreement is hereby accepted as of the date thereof.
XXXXXXX SACHS FUNDS MANAGEMENT, L.P.
A SEPARATE OPERATING DIVISION OF XXXXXXX, XXXXX & CO.
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxx
Attest:______________________________ By:_____________________________
Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxx
Secretary of the Registrant Managing Director
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