Exhibit (d)(6)
INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT, dated as of (the
"Agreement"), by and between XXX XXXXXX LIFE INVESTMENT TRUST, a Delaware
statutory trust (the "Trust"), on behalf of its series, XXX XXXXXX LIFE
INVESTMENT TRUST GLOBAL TACTICAL ASSET ALLOCATION PORTFOLIO (the "Portfolio")
and XXX XXXXXX ASSET MANAGEMENT (the "Adviser"), a Delaware statutory trust.
1. (a) Retention of Adviser by Portfolio. Subject to the terms and
conditions set forth herein, the Portfolio hereby employs the Adviser to act as
the investment adviser for and to manage the investment and reinvestment of the
assets of the Portfolio in accordance with the Portfolio's investment objectives
and policies and limitations, and to administer its affairs to the extent
requested by, and subject to the review and supervision of, the Board of
Trustees of the Portfolio for the period and upon the terms herein set forth.
The investment of Portfolios shall be subject to all applicable restrictions of
applicable law and of the Declaration of Trust and By-Laws of the Trust, and
resolutions of the Board of Trustees of the Portfolio as may from time to time
be in force and delivered or made available to the Adviser.
(b) Adviser's Acceptance of Employment. The Adviser accepts such
employment and agrees during such period to render such services, to supply
investment research and portfolio management (including without limitation the
selection of securities for the Portfolio to purchase, hold or sell and the
selection of brokers through whom the Portfolio's transactions are executed, in
accordance with the policies adopted by the Portfolio and its Board of
Trustees), to administer the business affairs of the Portfolio, to furnish
offices and necessary facilities and equipment to the Portfolio, to provide
administrative services for the Portfolio, to render periodic reports to the
Board of Trustees of the Portfolio, and to permit any of its officers or
employees to serve without compensation as trustees or officers of the Portfolio
if elected to such positions.
(c) Essential Personnel. The Adviser and the Portfolio agree that the
retention of (i) the chief executive officer, president, chief financial officer
and secretary of the Adviser and (ii) each director, officer and employee of the
Adviser or any of its Affiliates (as defined in the Investment Company Act of
1940, as amended (the "1940 Act")) who serves as an officer of the Portfolio
(each person referred to in (i) or (ii) hereinafter being referred to as an
"Essential Person"), in his or her current capacities, is in the best interest
of the Portfolio and the Portfolio's shareholders. In connection with the
Adviser's acceptance of employment hereunder, the Adviser hereby agrees and
covenants for itself and on behalf of its Affiliates that neither the Adviser
nor any of its Affiliates shall make any material or significant personnel
changes or replace or seek to replace any Essential Person or cause to be
replaced any Essential Person, in each case without first informing the Board of
Trustees of the Portfolio in a timely manner. In addition, neither the Adviser
nor any Affiliate of the Adviser shall change or seek to change or cause to be
changed, in any material respect, the duties and responsibilities of any
Essential Person, in each case without first informing the Board of Trustees of
the Portfolio in a timely manner.
(d) Independent Contractor. The Adviser shall be deemed to be an
independent contractor under this Agreement and, unless otherwise expressly
provided or authorized, shall have no authority to act for or represent the
Portfolio in any way or otherwise be deemed as agent of the Portfolio.
(e) Non-Exclusive Agreement. The services of the Adviser to the
Portfolio under this Agreement are not to be deemed exclusive, and the Adviser
shall be free to render similar services or other services to others so long as
its services hereunder are not impaired thereby.
2. (a) Fee. For the services and facilities described in Section 1, the
Portfolio will accrue daily and pay to the Adviser at the end of each calendar
month an investment management fee computed based on a fee rate (expressed as a
percentage per annum) applied to the average daily net assets of the Portfolio
as follows:
Average Daily Annum of Average
Net Assets Daily Net Assets
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First $750 million of 0.75%
Next $750 million of 0.70%
Over $1.5 billion of 0.65%
(b) Expense Limitation. The Adviser's compensation for any fiscal year
of the Portfolio shall be reduced by the amount, if any, by which the
Portfolio's expense for such fiscal year exceeds the most restrictive applicable
expense limitation in any jurisdiction in which the Portfolio's shares are
qualified for offer and sale, as such limitations set forth in the most recent
notice thereof furnished by the Adviser to the Portfolio. For purposes of this
paragraph there shall be excluded from computation of the Portfolio's expenses
any amount borne directly or indirectly by the Portfolio which is permitted to
be excluded from the computation of such limitation by such statue or regulatory
authority. If for any month expenses of the Portfolio properly included in such
calculation exceed 1/12 of the amount permitted annually by the most restrictive
applicable expense limitation, the payment to the Adviser for that month shall
be reduced, and, if necessary, the Adviser shall make a rePortfolio payment to
the Portfolio, so that the total net expense for the month will not exceed 1/12
of such amount. As of the end of the Portfolio's fiscal year, however, the
computations and payments shall be readjusted so that the aggregate compensation
payable to the Adviser for the year is equal to the fee set forth in subsection
(a) of this Section 2, diminished to the extent necessary so that the expenses
for the year do not exceed those permitted by the applicable expense limitation.
(c) Determination of Net Asset Value. The net asset value of the
Portfolio shall be calculated as of the close of the New York Stock Exchange on
each day the Exchange is open for trading or such other time or times as the
trustees may determine in accordance with the provisions of applicable law and
the Declaration of Trust and By-Laws of the Trust, and resolutions of the Board
of Trustees of the Portfolio as from time to time in force. For the purpose of
the foregoing computations, on each such day when net asset value is not
calculated, the net asset value of a share of beneficial interest of the
Portfolio shall be deemed to be the net asset value of such share as of the
close of business of the last day on which such calculation was made.
(d) Proration. For the month and year in which this Agreement becomes
effective or terminates, there shall be an appropriate proration of the
Adviser's fee on the basis of the number of days that the Agreement is in effect
during such month and year, respectively.
3. Expenses. In addition to the fee of the Adviser, the Portfolio shall
assume and pay any expenses for services rendered by a custodian for the
safekeeping of the Portfolio's securities or other property, for keeping its
books of account, for any other changes of the custodian and for calculating the
net asset value of the Portfolio as provided above. The Adviser shall not be
required to pay, and the Portfolio shall assume and pay, the charges and
expenses of its operations, including compensation of the trustees (other than
those who are interested persons of the Adviser and other than those who are
interested persons of the distributor of the Portfolio but not of the Adviser,
if the distributor has agreed to pay such compensation), charges and expenses of
independent accountants, of legal counsel and of any transfer or dividend
disbursing agent, costs of acquiring and disposing of portfolio securities, cost
of listing shares on the New York Stock Exchange or other exchange, interest (if
any) on obligations incurred by the Portfolio, costs of shares certificates,
membership dues in the Investment Company Institute or any similar organization,
costs of reports and notices to shareholders, cost of registering shares of the
Portfolio under the federal securities laws, miscellaneous expenses and all
taxes and fees to federal, state or other governmental agencies on account of
the registration of securities issued by the Portfolio, filing of corporate
documents or otherwise. The Portfolio shall not pay or incur any obligation for
any management or administrative expenses for which the Portfolio intends to
seek reimbursement from the Adviser without first obtaining the written approval
of the Adviser. The Adviser shall arrange, if desired by the Portfolio, for
officers or employees of the Adviser to serve, without compensation from the
Portfolio, as trustees, officers or agents of the Portfolio if duly elected or
appointed to such positions and subject to
their individual consent and to any limitations imposed by the law.
4. Interested Persons. Subject to applicable statutes and regulations, it
is understood that trustees, officers, shareholders and agents of the Portfolio
are or may be interested in the Adviser as directors, officers, shareholders,
agents or otherwise and that the directors, officers, shareholders and agents of
the Adviser may be interested in the Portfolio as trustees, officers,
shareholders, agents or otherwise.
5. Liability. The Adviser shall not be liable for any error of judgment or
of law, or for any loss suffered by the Portfolio in connection with the matters
to which this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on the part of the Adviser in the
performance of its obligations and duties, or by reason of its reckless
disregard of its obligations and duties under this Agreement.
6. (a) Term. This Agreement shall become effective on the date hereof and
shall remain in full force for the two-year period from the effective date
hereof unless sooner terminated as hereinafter provided. This Agreement shall
continue in force from year to year thereafter, but only for so long as such
continuance is specifically approved as least annually, in the manner required
by the 1940 Act.
(b) Termination. This Agreement shall automatically terminate in the
event of its assignment. This Agreement may be terminated at any time without
the payment of any penalty by the Portfolio or by the Adviser on sixty (60) days
written notice to the other party. The Portfolio may effect termination by
action of the Board of Trustees or by vote of a majority of the outstanding
shares of stock of the Portfolio, accompanied by appropriate notice. This
Agreement may be terminated at any time without the payment of any penalty and
without advance notice by the Board of Trustees or by vote of a majority of the
outstanding shares of the Portfolio in the event that it shall have been
established by a court of competent jurisdiction that the Adviser or any officer
or director of the Adviser has taken any action which results in a breach of the
covenants of the Adviser set forth herein.
(c) Payment upon Termination. Termination of this Agreement shall not
affect the right of the Adviser to receive payment on any unpaid balance of the
compensation described in Section 2 earned prior to such termination.
7. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision, statue, rule or otherwise, the remainder shall not
thereby be affected.
8. Notices. Any notice under this Agreement shall be in writing, addressed
and delivered or mailed, postage prepaid, to the other party at such address as
such other party may designate for the receipt of such notice.
9. Disclaimer. The Adviser acknowledges and agrees that, as provided by
Section 8.1 of the Declaration of Trust of the Trust, (i) this Agreement has
been executed by officers of the Trust in their capacity as officers, and not
individually, and (ii) the shareholders, trustees, officers, employees and other
agents of the Trust and the Portfolio shall not personally be bound by or liable
hereunder, nor shall resort be had to their private property for the
satisfaction of any obligation or claim hereunder and that any such resort may
only be had upon the assets and property of the Portfolio.
10. Governing Law. All questions concerning the validity, meaning and
effect of this Agreement shall be determined in accordance with the laws
(without giving effect to the conflict-of-law principles thereof) of the State
of Delaware applicable to contracts made and to be performed in that state.
11. Name. In connection with its employment hereunder, the Adviser hereby
agrees and covenants not to change its name without the prior consent of the
Board of Trustees of the Portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their officers designated below on the day and year first above written.
XXX XXXXXX ASSET MANAGEMENT XXX XXXXXX LIFE INVESTMENT TRUST, on
behalf of its series, XXX XXXXXX
LIFE INVESTMENT TRUST GLOBAL
TACTICAL ASSET ALLOCATION PORTFOLIO
By: By:
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Name: Xxxxxx X. Xxxx III Name: Xxxxxx Xxxxxxx
Title: Managing Director and Title: Chief Financial Officer
Chief Administrative Officer and Treasurer
