LMP INSTITUTIONAL TRUST
SMASh Series MEC SPOKE Fund
MANAGEMENT AGREEMENT
This MANAGEMENT AGREEMENT (Agreement) is made this 13th day
of April, 2007, by and between Xxxx Xxxxx Partners Institutional
Trust (the Trust) and Xxxx Xxxxx Partners Fund Advisor, LLC, a
Delaware limited liability company (the Manager).
WHEREAS, the Trust is a Maryland business trust registered
as a management investment company under the Investment Company
Act of 1940, as amended (the 1940 Act);
WHEREAS, the Manager is engaged primarily in rendering
investment advisory, management and administrative services and is
registered as an investment adviser under the Investment Advisers
Act of 1940, as amended;
WHEREAS, the Trust wishes to retain the Manager to provide
investment advisory, management, and administrative services to
the Trust with respect to the series of the Trust designated in
Schedule A annexed hereto (the Fund); and
WHEREAS, the Manager is willing to furnish such services on
the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the promises and mutual
covenants herein contained, it is agreed as follows:
1. The Trust hereby appoints the Manager to act as
investment adviser and administrator of the Fund for the period
and on the terms set forth in this Agreement. The Manager accepts
such appointment and agrees to render the services herein set
forth, for the compensation herein provided.
2.
The fund shall at all times keep the Manager fully informed with
regard to the securities owned by it, its funds available, or to
become available, for investment, and generally as to the
condition of its affairs. It shall furnish the Manager with such
other documents and information with regard to its affairs as the
Manager may from time to time reasonably request.
3.
(a) Subject to the supervision of the Trusts Board of Trustees
(the Board), the Manager shall regularly provide the Fund with
investment research, advice, management and supervision and shall
furnish a continuous investment program for the Fund's portfolio
of securities and other investments consistent with the Fund's
investment objectives, policies and restrictions, as stated in the
Funds current Prospectus and Statement of Additional Information.
The Manager shall determine from time to time what securities and
other investments will be purchased (including, as permitted in
accordance with this paragraph, swap agreements, options and
futures), retained, sold or exchanged by the Fund and what portion
of the assets of the Funds portfolio will be held in the various
securities and other investments in which the Fund invests, and
shall implement those decisions (including the execution of
investment documentation), all subject to the provisions of the
Trusts Declaration of Trust and By-Laws (collectively, the
Governing Documents), the 1940 Act, and the applicable rules and
regulations promulgated thereunder by the Securities and Exchange
Commission (the SEC) and interpretive guidance issued thereunder
by the SEC staff and any other applicable federal and state law
as well as the investment objectives, policies and restrictions of
the Fund referred to above, and any other specific policies
adopted by the Board and disclosed to the Manager. The Manager is
authorized as the agent of the Trust to give instructions to the
custodian of the Fund as to deliveries of securities and other
investments and payments of cash for the account of the Fund.
Subject to applicable provisions of the 1940 Act and direction
from the Board, the investment program to be provided hereunder
may entail the investment of all or substantially all of the
assets of the Fund in one or more investment companies. The
Manager will place orders pursuant to its investment
determinations for the Fund either directly with the issuer or
with any broker or dealer, foreign currency dealer, futures
commission merchant or others selected by it. In connection with
the selection of such brokers or dealers and the placing of such
orders, subject to applicable law, brokers or dealers may be
selected who also provide brokerage and research services (as
those terms are defined in Section 28(e) of the Securities
Exchange Act of 1934, as amended (the Exchange Act)) to the Funds
and/or the other accounts over which the Manager or its affiliates
exercise investment discretion. The Manager is authorized to pay
a broker or dealer who provides such brokerage and research
services a commission for executing a portfolio transaction for
the Fund which is in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction
if the Manager determines in good faith that such amount of
commission is reasonable in relation to the value of the brokerage
and research services provided by such broker or dealer. This
determination may be viewed in terms of either that particular
transaction or the overall responsibilities which the Manager and
its affiliates have with respect to accounts over which they
exercise investment discretion. The Board may adopt policies and
procedures that modify and restrict the Managers authority
regarding the execution of the Funds portfolio transactions
provided herein. The Manager shall also provide advice and
recommendations with respect to other aspects of the business and
affairs of the Fund, shall exercise voting rights, rights to
consent to corporate action and any other rights pertaining to the
Fund's portfolio securities subject to such direction as the Board
may provide, and shall perform such other functions of investment
management and supervision as may be directed by the Board. The
Manager may execute on behalf of the Fund certain agreements
instruments and documents in connection with the services
performed by it under this Agreement. These may include, without
limitation, brokerage agreements, clearing agreements, account
documentation, futures and option agreements, swap agreements
other investment related agreements, and any other agreements
documents or instruments the Manager believes are appropriate or
desirable in performing its duties under this Agreement.
(b) Subject to the direction and control of the Board, the Manager
shall perform such administrative and management services as may
from time to time be reasonably requested by the Fund as necessary
for the operation of the Fund, such as (i) supervising the overall
administration of the Fund, including negotiation of contracts and
fees with and the monitoring of performance and xxxxxxxx of the
Fund's transfer agent, shareholder servicing agents, custodian and
other independent contractors or agents, (ii) providing certain
compliance, fund accounting, regulatory reporting, and tax
reporting services, (iii) preparing or participating in the
preparation of Board materials, registration statements, proxy
statements and reports and other communications to shareholders
(iv) maintaining the Funds existence, and (v) during such times
as shares are publicly offered, maintaining the registration and
qualification of the Funds shares under federal and state laws.
Notwithstanding the foregoing, the Manager shall not be deemed to
have assumed any duties with respect to, and shall not be
responsible for, the distribution of the shares of any Fund, nor
shall the Manager be deemed to have assumed or have any
responsibility with respect to functions specifically assumed by
any transfer agent, fund accounting agent, custodian, shareholder
servicing agent or other agent, in each case employed by the Fund
to perform such functions.
(c) The Fund hereby authorizes any entity or person associated
with the Manager which is a member of a national securities
exchange to effect any transaction on the exchange for the account
of the Fund which is permitted by Section 11(a) of the Exchange
Act and Rule 11a2-2(T) thereunder, and the Fund hereby consents to
the retention of compensation for such transactions in accordance
with Rule 11a2-2(T)(a)(2)(iv). Notwithstanding the foregoing, the
Manager agrees that it will not deal with itself, or with members
of the Board or any principal underwriter of the Fund, as
principals or agents in making purchases or sales of securities or
other property for the account of the Fund, nor will it purchase
any securities from an underwriting or selling group in which the
Manager or its affiliates is participating, or arrange for
purchases and sales of securities between the Fund and another
account advised by the Manager or its affiliates, except in each
case as permitted by the 1940 Act and in accordance with such
policies and procedures as may be adopted by the Fund from time to
time, and will comply with all other provisions of the Governing
Documents and the Funds then-current Prospectus and Statement of
Additional Information relative to the Manager and its directors
and officers.
4.
Subject to the Board's approval, the Manager or the Fund may
enter into contracts with one or more investment subadvisers
or subadministrators, including without limitation
affiliates of the Manager, in which the Manager delegates to
such investment subadvisers or subadministrators any or all
its duties specified hereunder, on such terms as the Manager
will determine to be necessary, desirable or appropriate
provided that in each case the Manager shall supervise the
activities of each such subadviser or subadministrator and
further provided that such contracts impose on any
investment subadviser or subadministrator bound thereby all
the conditions to which the Manager is subject hereunder and
that such contracts are entered into in accordance with and
meet all applicable requirements of the 1940 Act.
5.
(a)The Manager, at its expense, shall supply the Board and
officers of the Trust with all information and reports
reasonably required by them and reasonably available to the
Manager and shall furnish the Fund with office facilities
including space, furniture and equipment and all personnel
reasonably necessary for the operation of the Fund. The
Manager shall oversee the maintenance of all books and
records with respect to the Fund's securities transactions
and the keeping of the Fund's books of account in accordance
with all applicable federal and state laws and regulations.
In compliance with the requirements of Rule 31a-3 under the
1940 Act, the Manager hereby agrees that any records that it
maintains for the Fund are the property of the Fund, and
further agrees to surrender promptly to the Fund any of such
records upon the Fund's request. The Manager further agrees
to arrange for the preservation of the records required to
be maintained by Rule 31a-1 under the 1940 Act for the
periods prescribed by Rule 31a-2 under the 1940 Act. The
Manager shall authorize and permit any of its directors
officers and employees, who may be elected as Board members
or officers of the Fund, to serve in the capacities in which
they are elected.
(b) The Manager shall bear all expenses, and shall furnish all
necessary services, facilities and personnel, in connection with
its responsibilities under this Agreement. Other than as herein
specifically indicated, the Manager shall not be responsible for
the Fund's expenses, including, without limitation, advisory fees;
distribution fees; interest; taxes; governmental fees; voluntary
assessments and other expenses incurred in connection with
membership in investment company organizations; organization costs
of the Fund; the cost (including brokerage commissions
transaction fees or charges, if any) in connection with the
purchase or sale of the Funds securities and other investments
and any losses in connection therewith; fees and expenses of
custodians, transfer agents, registrars, independent pricing
vendors or other agents; legal expenses; loan commitment fees
expenses relating to share certificates; expenses relating to the
issuing and redemption or repurchase of the Fund's shares and
servicing shareholder accounts; expenses of registering and
qualifying the Fund's shares for sale under applicable federal and
state law; expenses of preparing, setting in print, printing and
distributing prospectuses and statements of additional information
and any supplements thereto, reports, proxy statements, notices
and dividends to the Fund's shareholders; costs of stationery
website costs; costs of meetings of the Board or any committee
thereof, meetings of shareholders and other meetings of the Fund;
Board fees; audit fees; travel expenses of officers, members of
the Board and employees of the Fund, if any; and the Fund's pro
rata portion of premiums on any fidelity bond and other insurance
covering the Fund and its officers, Board members and employees
litigation expenses and any non-recurring or extraordinary
expenses as may arise, including, without limitation, those
relating to actions, suits or proceedings to which the Fund is a
party and the legal obligation which the Fund may have to
indemnify the Funds Board members and officers with respect
thereto.
6. No member of the Board, officer or employee of the Trust
or Fund shall receive from the Trust or Fund any salary or other
compensation as such member of the Board, officer or employee
while he is at the same time a director, officer, or employee of
the Manager or any affiliated company of the Manager, except as
the Board may decide. This paragraph shall not apply to Board
members, executive committee members, consultants and other
persons who are not regular members of the Manager's or any
affiliated company's staff.
7. The Fund shall not pay the Manager any fee hereunder.
The Manager acknowledges and agrees that the Fund is an integral
part of separately managed account programs, and that the Manager
will be compensated directly or indirectly by separately managed
account sponsors for services rendered hereunder. The Manager
acknowledges and agrees that such compensation is sufficient
consideration hereunder.
8. The Manager assumes no responsibility under this
Agreement other than to render the services called for hereunder
in good faith, and shall not be liable for any error of judgment
or mistake of law, or for any loss arising out of any investment
or for any act or omission in the execution of securities
transactions for the Fund, provided that nothing in this Agreement
shall protect the Manager against any liability to the Fund to
which the Manager would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of
its duties or by reason of its reckless disregard of its
obligations and duties hereunder. As used in this Section 8, the
term Manager shall include any affiliates of the Manager
performing services for the Trust or the Fund contemplated hereby
and the partners, shareholders, directors, officers and employees
of the Manager and such affiliates.
9. Nothing in this Agreement shall limit or restrict the
right of any director, officer, or employee of the Manager who may
also be a Board member, officer, or employee of the Trust or the
Fund, to engage in any other business or to devote his time and
attention in part to the management or other aspects of any other
business, whether of a similar nature or a dissimilar nature, nor
to limit or restrict the right of the Manager to engage in any
other business or to render services of any kind, including
investment advisory and management services, to any other fund
firm, individual or association. If the purchase or sale of
securities consistent with the investment policies of the Fund or
one or more other accounts of the Manager is considered at or
about the same time, transactions in such securities will be
allocated among the accounts in a manner deemed equitable by the
Manager. Such transactions may be combined, in accordance with
applicable laws and regulations, and consistent with the Managers
policies and procedures as presented to the Board from time to
time.
10. For the purposes of this Agreement, the terms assignment
interested person, and majority of the outstanding voting
securities shall have the meanings given to them by Section 2(a)
of the 1940 Act, subject to such exemptions as may be granted by
the SEC by any rule, regulation or order.
11. This Agreement will become effective with respect to the
Fund on the date set forth opposite the Funds name on Schedule A
annexed hereto, provided that it shall have been approved by the
Trust's Board and by the shareholders of the Fund in accordance
with the requirements of the 1940 Act and, unless sooner
terminated as provided herein, will continue in effect for an
initial two year term. Thereafter, if not terminated, this
Agreement shall continue in effect with respect to the Fund, so
long as such continuance is specifically approved at least
annually (i) by the Board or (ii) by a vote of a majority of the
outstanding voting securities of the Fund, provided that in either
event the continuance is also approved by a majority of the Board
members who are not interested persons of any party to this
Agreement, by vote cast in person at a meeting called for the
purpose of voting on such approval.
12. This Agreement is terminable with respect to the Fund
without penalty by the Board or by vote of a majority of the
outstanding voting securities of the Fund, in each case on not
more than 60 days nor less than 30 days written notice to the
Manager, or by the Manager upon not less than 90 days written
notice to the Fund, and will be terminated upon the mutual written
consent of the Manager and the Trust. This Agreement shall
terminate automatically in the event of its assignment by the
Manager and shall not be assignable by the Trust without the
consent of the Manager.
13. The Manager agrees that for services rendered to the
Fund, or for any claim by it in connection with services rendered
to the Fund, it shall look only to assets of the Fund for
satisfaction and that it shall have no claim against the assets of
any other portfolios of the Trust. The undersigned officer of the
Trust has executed this Agreement not individually, but as an
officer under the Trusts Declaration of Trust and the obligations
of this Agreement are not binding upon any of the Trustees,
officers or shareholders of the Trust individually.
14. No provision of this Agreement may be changed, waived
discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought, and no
material amendment of the Agreement shall be effective until
approved, if so required by the 1940 Act, by vote of the holders
of a majority of the Fund's outstanding voting securities.
15. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings relating to the subject matter
hereof. Should any part of this Agreement be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby. This Agreement
shall be binding on and shall inure to the benefit of the parties
hereto and their respective successors.
16. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the
State of New York.
[signature page to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their officers thereunto duly authorized.
XXXX XXXXX PARTNERS
INSTITUTIONAL TRUST
BY:
__________________________________________
Name:
Title:
XXXX XXXXX PARTNERS FUND
ADVISOR, LLC
BY:
__________________________________________
Name:
Title:
Schedule A
SMASh SERIES MEC FUND
DATE April 13,2007
BUSDOCS/1636624.1
BUSDOCS/1636624.1
