EXHIBIT 5(C)
INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
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THIS INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT is made as of this 15/th/
day of February, 1993, between THE MASTERS GROUP OF MUTUAL FUNDS, a business
trust organized under the laws of the Commonwealth of Massachusetts (the
"Trust"), on behalf of its Cash Reserve Portfolio, (the "Portfolio") and FIRST
TENNESSEE BANK NATIONAL ASSOCIATION, a national banking association doing
business as Garland Capital Management (the "Investment Adviser").
WHEREAS, the Trust has been organized to operate as an investment company
registered under the Investment Company Act of 1940 (the 1940 Act") with
multiple series of shares (hereinafter referred to as Portfolios) having
varying preferences, limitations and relative rights, and to invest and reinvest
the assets of the Portfolio in securities pursuant to investment objectives and
policies for the Portfolio;
WHEREAS, the Portfolio desires to avail itself of the services,
information, advice, assistance and facilities of an investment adviser and to
have an investment adviser provide or perform for it various investment
advisory, statistical, research, portfolio investment adviser selection and
other services as set forth more fully herein;
NOW, THEREFORE, Trust, on behalf of the Portfolio, and Investment Adviser
agree as follows:
1. Employment of the Investment Adviser. The Trust hereby employs the
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Investment Adviser to provide investment advice and to manage the investment and
reinvestment of the Portfolio's assets in the manner set forth in Section 2A of
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this Agreement, subject to the direction of the Trustees, for the period, in the
manner, and on the terms hereinafter set forth. The Investment Adviser hereby
accepts such employment and agrees during such period to render the services and
to assume the obligations herein set forth. The Investment Adviser shall for all
purposes herein be deemed to be an independent contractor and shall, except as
expressly provided or authorized (whether herein or otherwise), have no
authority to act for or represent the Trust in any way or otherwise be deemed an
agent of the Trust.
2. Obligation of and Services to be Provided by the Investment Adviser. The
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Investment Adviser undertakes to provide the services hereinafter set forth and
to assume the following obligations:
A. Investment Advisory services.
(a) The Investment Adviser shall have overall responsibility for the day-
to-day management and investment of the Portfolio's assets and
securities portfolio subject to and in accordance with the investment
objectives and policies of the Portfolio, and any directions which the
Trustees and officers of the Trust may issue to the Investment Adviser
from time to time, and shall perform the following services: (i)
provide or cause to be provided investment research and credit
analysis concerning the Portfolio's investments, (ii) conduct or cause
to be conducted a continual program of investment of the Portfolio's
assets, (iii) place or cause to be placed orders for all purchases and
sales of the investments made for the Portfolio, and (iv) maintain or
cause to be maintained the books and records required in connection
with its duties hereunder.
(b) The Investment Adviser shall advise the Trustees of the Trust
regarding overall investment programs and strategies for the
Portfolio, revision of such programs as necessary, and shall
monitor and report periodically to the Trustees concerning the
implementation of such programs and strategies.
(c) The Investment Adviser, with the prior approval of the Trustees (and
the shareholders to the extent required by applicable law) as to
particular appointments, shall be permitted to (i) engage one or more
persons or companies ("Sub-Advisers"), which may have full investment
discretion to make all determinations with respect to the investment
and reinvestment of all or any portion of the Portfolio's assets and
the purchase and sale of all or any portion of the Portfolio
securities, subject to the terms and conditions of this Agreement and
the written agreement with any Sub-Adviser; and (ii) take such steps
as may be necessary to implement such appointment.
(d) The Investment Adviser shall be solely responsible for paying the fees
and expenses of any Sub-Adviser for its services to the Investment
Adviser and the Portfolio. Except for instructions or advice given to
the Sub-Adviser by the Investment Adviser, the Investment Adviser
shall not be responsible or liable for the investment merits of any
decision by the Sub-Adviser to purchase, hold or sell a security for
the Portfolio.
(e) In the event one or more Sub-Advisers is appointed pursuant to
subparagraph (c) hereof, the Investment Adviser shall (i) monitor and
evaluate the investment performance of each Sub-Adviser employed by
the Investment Adviser for the Portfolio; (ii) allocate the portion of
the Portfolio's assets to be managed by each Sub-Adviser; (iii)
recommend changes in or additional Sub-Advisers when appropriate; and
(iv) compensate each Sub-Adviser.
(f) The Investment Adviser shall render such reports to the Trustees, at
regular meetings thereof, as the Trustees may reasonably request
regarding, among other things, the investment performance of the
Portfolio, including, if any Sub-Adviser has been appointed, the
investment performance of each Sub-Adviser.
(g) The Investment Adviser will monitor and coordinate, to the extent
necessary, the activities of the custodian, transfer agent,
distributor, administrator and pricing agent insof ar as their
respective activities relate to the duties and obligations of the
Investment Adviser hereunder.
B. Provision of Information Necessary for Preparation of Securities
Registration Statements, Amendments and Other Materials.
The Investment Adviser will make available and provide such financial,
accounting and statistical information related to its duties and
responsibilities hereunder as required by the Trustees and necessary for
the preparation of registration statements, reports and other documents
required by federal and state securities laws and such other information as
the Trustees may reasonably request for use by the Trust and its
distributor for the underwriting and distribution of the Portfolio's
shares.
C. Other Obligations and Services.
The Investment Adviser agrees to make available its officers and employees
to the Trustees and officers of the Trust for consultation and discussions
regarding the investment advisory activities of the Portfolio.
3. Covenants by Investment Adviser. The Investment Adviser agrees with
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respect to the services provided to the Portfolio that it:
(a) will conform with all applicable rules and regulations of the
securities and Exchange commission ("SEC") and will in addition
conduct its activities under this Agreement in accordance with
applicable regulations of the Office of the Comptroller of the
currency pertaining to the investment advisory activities of national
banks which are applicable to the Investment Adviser;
(b) will not make loans to any person for the purpose of purchasing or
carrying Portfolio shares, or make loans to the Trust;
(c) will not purchase shares of the Portfolio for its own investment
account;
(d) will maintain all books and records with respect to the securities
transactions of the Portfolio and furnish the Trustees such periodic
and special reports as the Trustees may request with respect to the
Portfolio;
(e) will treat confidentially and as proprietary information of the Trust
all records and other information relative to the Trust and the
Portfolio and prior, present or potential shareholders (other than any
information which Investment Adviser may have obtained about
shareholders from other business relationships with such
shareholders), and will not use such records and information for any
purpose other than performance of its responsibilities and duties
hereunder (except after prior notification to and approval in writing
by the Trust, which approval shall not be unreasonably withheld and
may not be withheld and will be deemed granted where the Investment
Adviser may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, when so requested by the Trust or when
otherwise required or permitted by law); and
(f) will immediately notify the Trust of the occurrence of any event which
would disqualify Investment Adviser or any Sub-Adviser from serving as
investment adviser of an investment company.
4. Transaction Procedures. All investment transactions on behalf of the
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Portfolio will be consummated by payment to or delivery by the custodian for the
Portfolio duly appointed by the Trustees of the Trust (the "Custodian") , or
such approved depositories or agents duly appointed by the Trustees and as may
be designated by the Custodian in writing, as custodian for the Portfolio, of
all cash and/or securities due to or from the Portfolio, and neither Investment
Adviser nor any Sub-Adviser shall have possession or custody thereof or any
responsibility or liability with respect thereto. The Investment Adviser or any
SubAdviser effecting transactions on behalf of the Portfolio shall advise the
Custodian of all investment orders for the Portfolio placed by it with brokers,
dealers, banks and other parties ("Brokers"). The Trustees shall issue, or cause
to be issued, to the Custodian such instructions as may be appropriate in
connection with the settlement of any transaction initiated by the Investment
Adviser or any Sub-Adviser. The Portfolio shall be responsible for all custodial
arrangements and the payment of all custodial charges and fees, and, upon the
giving of proper instructions to the Custodian, Investment Adviser shall have no
responsibility or liability with respect to custodian arrangements or the acts,
omissions or other conduct of the Custodian, except that it shall be the
responsibility of the Investment Adviser or any Sub-Adviser to take appropriate
action if the Custodian fails properly to confirm execution of the instructions
to the Investment Adviser or any Sub-Adviser in a written form duly agreed upon
by the Custodian and the Investment Adviser or any Sub-Adviser.
5. Execution and Allocation, of Portfolio Brokerage. The Investment Adviser
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shall place, or shall cause each Sub-Adviser to place, subject to the
limitations contained in this paragraph 5, on behalf of the Portfolio, orders
for the execution of the Portfolio's securities transactions. Neither the
Investment Adviser nor any Sub-Adviser is authorized by the Trust to take any
action, including the purchase or sale of securities for the account of the
Portfolio, (a) in contravention of (i) any investment restrictions set forth in
the 1940 Act and the rules thereunder; (ii) specific instructions adopted by the
Trustees and communicated to the Investment Adviser; (iii) the investment
objectives, policies and restrictions of the Portfolio as set forth in the
Trust's current registration statement, as amended from time to time; or (iv)
instructions from the Trustees to the Investment Adviser or from the Investment
Adviser to any Sub-Adviser, or (b) which would have the effect of causing the
Trust to fail to qualify or to cease to qualify as a regulated investment
company under the Internal Revenue Code of 1986, as amended, or any succeeding
statute.
The Investment Adviser or, if any Sub-Adviser shall be appointed, then the
Sub-Adviser, may place orders pursuant to its investment determinations for the
Portfolio either directly with the issuer or with any Brokers. In placing orders
with any Broker, the Investment Adviser or any Sub-Adviser will consider the
experience and skill of a Broker's securities traders as well as the Broker's
financial responsibility and administrative efficiency. The Investment Adviser
or any Sub-Adviser will attempt to obtain the best price and the most favorable
execution of its orders with any Brokers; however, in so doing, the Investment
Adviser or any Sub-Adviser may consider, subject to the approval of the
Trustees, the research, statistical, and related brokerage services provided or
to be provided by such Broker to the Portfolio. A commission paid to such
Brokers may be higher than that which another Broker would have charged for
effecting the same transaction, provided that the Investment Adviser or any
SubAdviser determines in good faith that such commission is reasonable in
relation to the value of the brokerage and research services provided by such
Broker when viewed in terms of either the particular transaction or the overall
responsibilities of the Investment Adviser or any Sub-Adviser with respect to
the accounts as to which it exercises investment discretion. It is understood
that neither the Investment Adviser nor any Sub-Adviser has adopted a formula
for selection of Brokers for the execution of the Portfolio's investment
transactions.
On occasions when either the Investment Adviser or any Sub-Adviser deems
the purchase or sale of a security to be in the best interest of the Portfolio
as well as other clients, the Investment Adviser or Sub-Adviser, to the extent
permitted by applicable laws and regulations, may, but shall be under no
obligation to, aggregate the securities to be sold or purchased in order to
obtain the most favorable price or lower brokerage commissions and efficient
execution. In such event, allocation of the securities so purchased or sold, as
well as expenses incurred in the transaction, will be made by the Investment
Adviser or Sub-Advisor in the manner it considers to be the most equitable and
consistent with its fiduciary obligations to the Portfolio and to such other
clients.
The Investment Adviser will not, and will cause each Sub-Adviser to,
execute any Portfolio transactions for the account of the Portfolio with a
Broker which is an "affiliated person" (as defined in the 0000 Xxx) of the
Trust, the Trust's distributor, the Investment Adviser or any Sub-Adviser
without the prior written approval of the Trustees. The Trust agrees to provide
the Investment Adviser, and the Investment Adviser agrees to furnish to each
Sub-Adviser, a list of brokers and dealers which are "affiliated persons" of the
Trust. The Investment Adviser likewise agrees to furnish, and to cause each Sub-
Adviser to furnish, to the Trust, with respect to such Sub-Adviser, a list of
Brokers which are "affiliated persons" of the Investment Adviser and each Sub-
Adviser. In no instance will Portfolio securities be purchased from or sold to
the Trust's principal distributor, Investment Adviser, any Sub-Adviser or any
affiliate thereof, except to the extent permitted by an exemption order issued
by the SEC or by applicable law.
The Investment Adviser shall render regular reports to the Trustees of the
total brokerage business placed by it and any Sub-Adviser(s) and the manner in
which the allocation of such brokerage has been accomplished.
6. Expenses of the Portfolio. The Portfolio or Trust will pay, or will
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enter into arrangements that require third parties to pay, all expenses other
than those expressly assumed by the Investment Adviser herein, which expenses
payable by the Portfolio or Trust shall include:
(a) Expenses of all audits by independent public accountants;
(b) Expenses of transfer agent, registrar, dividend disbursing agent
and shareholder recordkeeping services;
(c) Expenses of custodial services including recordkeeping services
provided by the custodian;
(d) Expenses of obtaining quotations for calculating the value of the
Portfolio's net assets;
(e) Salaries and other compensation of any of its executive officers
or employees, if any, who are not officers, directors,
stockholders or employees of the Investment Adviser, the
Administrator or the Distributor;
(f) Taxes levied against the Portfolio;
(g) Brokerage fees and commissions in connection with the purchase
and sale of portfolio securities for the Portfolio;
(h) Costs, including the interest expense, of borrowing money;
(i) Costs and/or fees incident to Trustees and shareholder meetings
of the Trust and the Portfolio, the preparation and mailings of
prospectuses and reports of the Portfolio to its existing
shareholders, the filing of reports with regulatory bodies, the
maintenance of the Portfolio's legal existence, and the
registration of shares with federal and state securities
authorities;
(j) Legal fees, including the legal fees related to the registration
and continued qualification of the Portfolio's shares for sale;
(k) Costs of printing any share certificates representing shares of
the Portfolio;
(1) Fees and expenses of Trustees who are not affiliated persons, as
defined in the 1940 Act, of the Investment Adviser, any Sub-
Adviser, the Distributor or any of their affiliates; and
(m) Its pro rata portion of the fidelity bond required by Section 17
(g) of the 1940 Act, or of other insurance premiums.
7. Activities and Affiliates of the Investment Adviser. The Trustees
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acknowledge that Investment Adviser or any Sub-Adviser, or one or more of its
affiliates, may have investment responsibilities or render investment advice to
or perform other investment advisory services for other individuals or entities
and that
Investment Adviser or any Sub-Adviser, its affiliates or any of its or their
directors, officers, agents or employees may buy, sell or trade in any
securities for its or their respective accounts (such individuals, entities and
accounts hereinafter referred to as Affiliated Accounts). Subject to the
provisions of paragraph 2 hereof, the Trustees agree that Investment Adviser or
its affiliates and any Sub-Adviser(s) or its affiliates, may give advice or
exercise investment responsibility and take such other action with respect to
other Affiliated Accounts which may differ from the advice given or the timing
or nature of action taken with respect to the Portfolio, provided that
Investment Adviser or Sub-Adviser acts in good faith, and provided further, that
it is Investment Adviser's and Sub-Adviser's policy to allocate within its
reasonable discretion, investment opportunities to the Portfolio over a period
of time on a fair and equitable basis relative to the Affiliated Accounts,
taking into account the investment objectives and policies of the Portfolio and
any specific investment restrictions applicable thereto. The Trust acknowledges
that one or more of the Affiliated Accounts may at any time hold, acquire,
increase, decrease, dispose of or otherwise deal with positions in investments
in which the Portfolio may have an interest from time to time, whether in
transactions which involve the Portfolio or otherwise. Neither the Investment
Adviser nor any Sub-Adviser shall have any obligation to acquire for the
Portfolio a position in any investment which any Affiliated Account may acquire,
and the Portfolio shall have no first refusal, co-investment or other rights in
respect of any investment, either for the Portfolio or otherwise.
8. Compensation of the Investment Adviser. For all services provided to the
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Portfolio pursuant to this Agreement, the Trust shall pay the Investment
Adviser, and the Investment Adviser agrees to accept as full compensation
therefor, an investment advisory fee, payable as soon as practicable after the
last day of each month, calculated using a Blended Annual Rate as hereinafter
defined. The monthly investment advisory fee to be paid by the Trust to the
Investment Adviser shall be determined as of the close of business on the last
business day of each month by multiplying one-twelfth of the Blended Annual
Rate, calculated monthly as of such day, by the Average Portfolio Net Assets
(hereinafter defined), also calculated monthly as of such day.
For purposes of this paragraph 8, the "Average Portfolio Net Assets" shall
be calculated monthly as of the last business day of each month and shall mean
the sum of the net assets of the Portfolio calculated each business day during
the month divided by the number of business days in the month (such net assets
to be determined as of the close of business each business day and computed in
the manner set forth in the Declaration of Trust of the Trust). The "Blended
Annual Rate" shall mean the rate determined by dividing the Aggregate Annualized
Trust Fee (hereinafter defined) by the Average Trust Net Assets (hereinafter
defined). "Average Trust Net Assets" shall mean the sum of the Average Portfolio
Net Assets for each portfolio of the Trust which is a money market fund operated
in compliance with Rule 2a-7 of the 1940 Act and managed by the Investment
Adviser pursuant to a written agreement with the Trust.
"Aggregate Annualized Trust Fee" shall be determined solely for the purpose
of determining the Blended Annual Rate and shall be the sum of the Annualized
Trust Fees determined in accordance with the following schedule:
Average Trust Net Assets x Annual Rate
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Up to $1 Billion x .25 percent
$1 Billion and over x .22 percent
The Investment Adviser agrees that its compensation for any fiscal year
shall be reduced by the amount, if any, by which the expenses of the Portfolio
for such fiscal year exceed the most restrictive state Blue Sky expense
limitation in effect from time to time, to the extent required by such
limitation. The Investment Adviser shall refund to the Portfolio the amount of
any reduction of the Investment Adviser's compensation pursuant to this
paragraph 8, reduced by the amount of any rebate paid directly to the Portfolio
by any Sub-Adviser engaged
by Investment Adviser, as promptly as practicable after the end of such fiscal
year, provided that the Investment Adviser will not be required to pay the
Portfolio an amount greater than the fee paid to the Investment Adviser in
respect of such year pursuant to this Agreement. As used in this paragraph 8,
"expenses" shall mean those expenses included in the most restrictive state Blue
sky limitation, having the broadest specification in such state's Blue Sky
statute, and "expense limitation" means a limit on the maximum annual expenses
which may be incurred by an investment company determined by multiplying a fixed
percentage by the average, or by multiplying more than one such percentage by
different specified amounts of the average, of the values of an investment
company's net assets for a fiscal year. The words "most restrictive state Blue
Sky expense limitation" shall be construed to result in the largest reduction of
the Investment Adviser's compensation for any fiscal year of the Portfolio;
provided, however, that nothing in this Agreement shall require the Investment
Adviser to reduce its fees if not required by an applicable statue or regulation
referred to above in this paragraph 8.
9. Proxies. The Trustees will vote all proxies solicited by or with
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respect to the issuers of securities in which assets of the Portfolio may be
invested from time to time, unless the Trustees delegate such right to the
Investment Adviser.
10. Liabilities of the Investment Adviser.
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(a) The Investment Adviser will not be liable for any error or
judgment or mistake of law or for any loss suffered by the
Portfolio or the Trust in connection with the matters to which
this Agreement relates, except that the Investment Adviser shall
be liable to the Portfolio and the Trust for a loss resulting
from a breach of fiduciary duty with respect to the receipt of
compensation for services or a loss resulting from willful
misfeasance, bad faith or gross negligence on the part of the
Investment Adviser in the performance of duties or reckless
disregard by it of its obligations or duties under this
Agreement.
(b) The Investment Adviser shall indemnify and hold harmless the
Portfolio from any loss, cost, expense or damage resulting from
the failure of any SubAdviser to comply with (i) any statement
included in the Trust's registration statement furnished by
Investment Adviser for inclusion therein, or (ii) instructions
given by the Investment Adviser to any Sub-Adviser for the
purpose of ensuring the Portfolio's compliance with the
applicable requirements of the 1940 Act or of the requirements of
the Internal Revenue Code of 1986 applicable to regulated
investment companies, or of successor statutes; provided,
however, that the indemnification provided by this subparagraph
10(b) shall apply only to the extent that the Sub-Adviser is
liable to the Trust and, after demand by the Trust, is unable or
refuses to discharge its obligation to the Portfolio.
(c) No provision of this Agreement shall be construed to protect any
Trustee or officer of the Trust, or the Investment Adviser, from
liability in violation of Sections 17(h) and (i) of the 1940 Act.
11. Renewal, Amendment and Termination.
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(a) This Agreement shall become effective on the date first written above
and shall remain in force for a period of two (2) years from such
date, and from year to year thereafter but only so long as such
continuance is specifically approved at least annually (i) by the vote
of a majority of the Trustees who are not interested persons of the
Portfolio or the Investment Adviser, cast in person at a meeting
called for the purpose of voting on such approval and by a vote of the
Board of
Trustees or (ii) by the vote of a majority of the outstanding voting
securities of the Portfolio. The aforesaid provision that this
Agreement may be continued "annually" shall be construed in a manner
consistent with the 1940 Act and the rules and regulations thereunder.
(b) This Agreement may be amended at any time, but only by written
agreement between the Trust and the Investment Adviser, which
amendment is subject to the approval of the Trustees and the
shareholders of the Trust in the manner required by the 1940 Act,
subject to any applicable exemption order of the SEC modifying the
provisions of the 1940 Act with respect to approval of amendments to
this Agreement.
(c) This Agreement:
(i) may at any time be terminated without the payment of any
penalty either by vote of the Trustees or by vote of a
majority of the outstanding voting securities of the
Portfolio, on sixty (60) days' written notice to the
Investment Adviser;
(ii) shall immediately terminate in the event of its
assignment; and
(iii) may be terminated by the Investment Adviser on sixty (60)
days' written notice to the Trust.
(d) As used in this Section 11, the terms "assignment," "interested
person" and "vote of a majority of the outstanding voting securities"
shall have the meanings set forth in the 1940 Act and the rules and
regulations thereunder, subject to any applicable orders of exemption
issued by the SEC.
12. Books and Records. (a) The Trustees shall provide to the Investment
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Adviser copies of the Trust's most recent prospectus and statement of additional
information (as each may be amended or supplemented from time to time) which
relate to any class of shares representing interests in the Portfolio.
(b) In compliance with the requirements of Rule 31a-3 of the rules
promulgated under the 1940 Act ("Rules"), the Investment Adviser hereby agrees
that all records which it maintains for the Trust are the property of the Trust
and further agrees to surrender promptly to the Trust any such records upon the
Trust's request. The Investment Adviser further agrees to preserve for the
periods prescribed by Rule 31a-2, the records required to be maintained by the
Investment Adviser hereunder pursuant to Rule 31a-1 of the Rules.
13. Notices. All notices, requests, demands or other, communications
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hereunder shall be in writing and shall be deemed given, if delivered
personally, on the day delivered or if mailed, by certified or registered mail,
postage prepaid, return receipt requested, three (3) days after placement in the
United States mail, to the addresses below:
If to Trust: The Masters Group of Mutual Funds
x/x Xxxxxx X. Xxxxx, Xxx., Secretary
00 Xxxxxxxxxx Xxxxxx, X0X
Xxxxxx, XX 00000
With a copy to: Xxxxxx X. Xxxxxxxxxxxxx Esq.
Heiskell, Donelson, Bearman, Adams,
Xxxxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
If to Investment Adviser: Garland capital Management
c/o C. Xxxxxxx Xxxxx, III
Senior Vice President
First Tennessee Bank National
Association
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
with a copy to: Xxx Xxxxx, Esq.
Martin, Tate, Xxxxxx & Xxxxxxx, P.C.
22N. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
14. Severability. If any provision of this Agreement shall be held or made
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invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
15. Limitation on Liability. Investment Adviser is hereby expressly put on
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notice of the limitation of shareholder liability as set forth in the
Declaration of Trust and agrees that obligations assumed by the Portfolio
pursuant to this Agreement shall be limited in all cases to the Portfolio and
its assets. Investment Adviser agrees that it shall not seek satisfaction of any
such obligation from the shareholders or any individual shareholder of the
Portfolio, nor from the Trustees or any individual Trustee of the Portfolio.
16. Governing Law. To the extent that state law has not been preempted by
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the provisions of any law of the United States heretofore or hereafter enacted,
as the same may be amended from time to time, this Agreement shall be
administered, construed and enforced according to the laws of the State of
Tennessee without giving effect to the choice of laws provisions thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, as of the day and year first written above.
THE MASTERS GROUP OF MUTUAL FUNDS
/s/ By: Xxxxxxx X. Xxxxxxx, President
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Xxxxxxx X. Xxxxxxx, President
FIRST TENNESSEE BANK NATIONAL ASSOC-
IATION, doing business as Garland Capital
Management.
/s/ By: C. Xxxxxxx Xxxxx, III
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Title: Senior Vice President
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INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
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THIS INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT is made as of this 15th
day of February, 1993, between THE MASTERS GROUP OF MUTUAL FUNDS, a business
trust organized under the laws of the Commonwealth of Massachusetts (the
"Trust"), on behalf of its TOTAL RETURN EQUITY PORTFOLIO (the "Portfolio") and
FIRST TENNESSEE BANK NATIONAL ASSOCIATION, a national banking association (the
"Investment Adviser").
WHEREAS, the Trust has been organized to operate as an investment company
registered under the Investment Company Act of 1940 (the "1940 Act") with
multiple series of shares (hereinafter referred to as Classes) having varying
preferences, limitations and relative rights, and to invest and reinvest the
assets of the Portfolio in securities pursuant to investment objectives and
policies for the Portfolio;
WHEREAS, the Portfolio desires to avail itself of the services,
information, advice, assistance and facilities of an investment adviser and to
have an investment adviser provide or perform for it various investment
advisory, statistical, research, portfolio investment adviser selection and
other services as set forth more fully herein;
NOW, THEREFORE, Trust, on behalf of the Portfolio, and Investment Adviser
agree as follows:
1. Employment of the Investment Adviser. The Trust hereby employs the
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Investment Adviser to provide investment advice and to manage the investment and
reinvestment of the Portfolio's assets in the manner set forth in Section 2A of
this Agreement, subject to the direction of the Trustees, for the period, in the
manner, and on the terms hereinafter set forth. The Investment Adviser hereby
accepts such employment and agrees during such period to render the services and
to assume the obligations herein set forth. The investment Adviser shall for
all purposes herein be deemed to be an independent contractor and shall, except
as expressly provided or authorized (whether herein or otherwise), have no
authority to act or represent the Trust in any way or otherwise be deemed an
agent of the Trust.
2. Obligation of and Services to be Provided by the Investment Adviser.
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The Investment Adviser undertakes to provide the services hereinafter set forth
and to assume the following obligations:
A. Investment Advisory Services.
(a) The Investment Adviser shall have overall responsibility for the
day-to-day management and investment of the Portfolio's assets
and securities portfolio subject to and in accordance with the
investment objectives and policies of the Portfolio, and any
directions which the Trustees and officers of the Trust may issue
to the Investment Adviser from time to time, and shall perform
the following services: provide or cause to be provided
investment research and credit analysis concerning the
Portfolio's investments, (ii) conduct or cause to be conducted a
continual program of investment of the Portfolio's assets, (iii)
place or cause to be placed orders for all purchases and sales of
the investments made for the Portfolio, and (iv) maintain or
cause to be maintained the books and records required in
connection with its duties hereunder.
(b) The Investment Adviser shall advise the Trustees of the Trust
regarding overall investment programs and strategies for the
Portfolio, revision of such programs as necessary, and shall
monitor and report periodically to the Trustees concerning the
implementation of such programs and strategies.
(c) The Investment Adviser, with the prior approval of the Trustees
(and the shareholders to the extent required by applicable law)
as to particular appointments, shall be permitted to (i) engage
one or more persons or companies ("Sub-Advisers"), which may
have full investment discretion to make all determinations with
respect to the investment and reinvestment of all or any portion
of the Portfolio's assets and the purchase and sale of all or
any portion of the Portfolio securities, subject to the terms
and conditions of this Agreement and the written agreement with
any Sub-Adviser; and (ii) take such steps as may be necessary
to implement such appointment.
(d) The Investment Adviser shall be solely responsible f or paying
the fees and expenses of any Sub-Adviser for its services to the
Investment Adviser and the Portfolio. Except for instructions or
advice given to the Sub-Adviser by the Investment Adviser, the
Investment Adviser shall not be responsible or liable for the
investment merits of any decision by the Sub-Adviser to purchase,
hold or sell a security for the Portfolio.
(e) In the event one or more Sub-Advisers is appointed pursuant to
subparagraph (c) hereof, the Investment Adviser shall (i)
monitor and evaluate the investment performance of each Sub-
Adviser employed by the Investment Adviser for the Portfolio;
(ii) allocate the portion of the Portfolio's assets to be
managed by each Sub-Adviser; (iii) recommend changes in or
additional Sub-Advisers when appropriate; and (iv) compensate
each Sub-Adviser.
(f) The Investment Adviser shall render such reports to the Trustees,
at regular meetings thereof, as the Trustees may reasonably
request regarding, among other things, the investment performance
of the Portfolio, including, if any Sub-Adviser has been
appointed, the investment performance of each Sub-Adviser.
(g) The Investment Adviser will monitor and coordinate, to the
extent necessary, the activities of the custodian, transfer
agent, distributor, administrator and pricing agent insofar as
their respective activities relate to the duties and obligations
of the Investment Adviser hereunder.
B. Provision of Information Necessary for Preparation of Securities
Registration Statements, Amendments and Other Materials.
The Investment Adviser will make available and provide such financial,
accounting and statistical information related to its duties and
responsibilities hereunder as required by the Trustees and necessary
for the preparation of registration statement, reports and other
documents required by federal and state securities laws and such other
information as the Trustees may reasonably request for use by the
Trust and its distributor for the underwriting and distribution of the
Portfolio's shares.
C. Other Obligations and Services.
The Investment Adviser agrees to make available its officers and
employees to the Trustees and officers of the Trust for consultation
and discussions regarding the investment advisory activities of the
Portfolio.
3 . Covenants by Investment Adviser. The Investment Adviser agrees with
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respect to the services provided to the Portfolio that it:
(a) will conform with all applicable rules and regulations of the
Securities and Exchange Commission ("SEC") and will in addition
conduct its activities under this Agreement in accordance with
applicable regulations of the Office of the Comptroller of the
Currency pertaining to the investment advisory activities of
national banks which are applicable to the Investment Adviser;
(b) will not make loans to any person for the purpose of purchasing
or carrying Portfolio shares, or make loans to the Trust;
(c) will not purchase shares of the Portfolio for its own investment
account;
(d) will maintain all books and records with respect to the
securities transactions of the Portfolio and furnish the Trustees
such periodic and special reports as the Trustees may request
with respect to the Portfolio;
(e) will treat confidentially and as proprietary information of the
Trust all records and other information relative to the Trust and
the Portfolio and prior, present or potential shareholders (other
than any information which Investment Adviser may have obtained
about shareholders from other business relationships with such
shareholders), and will not use such records and information for
any purpose other than performance of its responsibilities and
duties hereunder (except after prior notification to and approval
in writing by the Trust, which approval shall not be unreasonably
withheld and may not be withheld and will be deemed granted where
the Investment Adviser may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, when so
requested by the Trust or when otherwise required or permitted by
law); and
(f) will immediately notify the Trust of the occurrence of any event
which would disqualify Investment Adviser or any Sub-Adviser from
serving as investment adviser of an investment company.
4. Transaction Procedures. All investment transactions on behalf of the
----------------------
Portfolio will be compensated by payment to or delivery by the custodian for the
Portfolio duly appointed by the Trustees of the Trust (the "Custodian"), or such
approved depositories or agents duly appointed by the Trustees and as may be
designated by the Custodian in writing, as custodian for the Portfolio, of all
cash and/or securities due to or from the Portfolio, and neither Investment
Adviser nor any Sub-Adviser shall have possession or custody thereof or any
responsibility or liability with respect thereto. The Investment Adviser or any
Sub-Adviser effecting transactions on behalf of the Portfolio shall advise the
Custodian of all investment orders for the Portfolio placed by it with brokers,
dealers, banks and other parties ("Brokers"). The Trustees shall issue, or
cause to be issued, to the Custodian such instructions as may be appropriate in
connection with the settlement of any transaction initiated by the Investment
Adviser or any Sub-Adviser. The Portfolio shall be responsible for all
custodial arrangements and the payment of all custodial charges and fees, and,
upon the giving of proper instructions to the Custodian, Investment Adviser
shall have no responsibility or liability with respect to custodian arrangements
or the acts, omissions or other conduct of the Custodian, except that it shall
be the responsibility of the Investment Adviser or any Sub-Adviser to take
appropriate action if the Custodian fails properly to confirm execution of the
instructions to the Investment Adviser or any Sub-Adviser in a written form duly
agreed upon by the Custodian and the Investment Adviser or any Sub-Adviser.
5 . Execution and Allocation of Portfolio Brokerage. The Investment
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Adviser shall place, or shall cause each Sub-Adviser to place, subject to the
limitations contained in this paragraph 5, on behalf of the Portfolio, orders
for the execution of the Portfolio's securities transactions. Neither the
Investment Adviser nor any Sub-Adviser is authorized by the Trust to take any
action, including the purchase or sale of securities for the account of the
Portfolio, (a) in contravention of (i) any investment restrictions set forth in
the 1940 Act and the rules thereunder; (ii) specific instructions adopted by the
Trustees and communicated to the Investment Adviser; (iii) the investment
objectives, policies and restrictions of the Portfolio as set forth in the
Trust's current registration statement, as amended from time to time; or (iv)
instructions from the Trustees to the Investment Adviser or from the Investment
Adviser to any Sub-Adviser, or (b) which would have the effect of causing the
Trust to fail to qualify or to cease to qualify as a regulated investment
company under the Internal Revenue Code of 1986, as amended, or any succeeding
statute.
The Investment Adviser or, if any Sub-Adviser shall be appointed, then the
Sub-Adviser, may place orders pursuant to its investment determinations for the
Portfolio either directly with the issuer or with any Brokers. In placing
orders with any Broker, the Investment Adviser or any Sub-Adviser will consider
the experience and skill of a Broker's securities traders as well as the
Broker's financial responsibility and administrative efficiency. The Investment
Adviser or any Sub-Adviser will attempt to obtain the best price and the most
favorable execution of its orders with any Brokers; however, in so doing, the
Investment Adviser or any Sub-Adviser may consider, subject to the approval of
the Trustees, the research, statistical, and related brokerage services provided
or to be provided by such Broker to the Portfolio. A commission paid to such
Brokers may be higher than that which another Broker would have charged for
effecting the same transaction, provided that the Investment Adviser or any Sub-
Adviser determines in good faith that such commission is reasonable in relation
to the value of the brokerage and research services provided by such Broker when
viewed in terms of either the particular transaction or the overall
responsibilities of the Investment Adviser or any Sub-Adviser with respect to
the accounts as to which it exercises investment discretion. It is understood
that neither the Investment Adviser nor any Sub-Adviser has adopted a formula
for selection of Brokers for the execution of the Portfolio's investment
transactions on occasions when either the Investment Adviser or any Sub-Adviser
deems the purchase or sale of a security to be in the best interest of the
Portfolio as well as other clients, the Investment Adviser or Sub-Adviser, to
the extent permitted by applicable laws and regulations, may, but shall be under
no obligation to, aggregate the securities to be sold or purchased in order to
obtain the most favorable price or lower brokerage commissions and efficient
execution. In such event, allocation of the securities so purchased or sold, as
well as expenses incurred in the transaction, will be made by the Investment
Adviser or Sub-Adviser in the manner it considers to be the most equitable and
consistent with its fiduciary obligations to the Portfolio and to such other
clients.
The Investment Adviser will not, and will cause each Sub-Adviser not to,
execute any Portfolio transactions for the account of the Portfolio with a
Broker which is an "affiliated person" (as defined in the 0000 Xxx) of the
Trust, the Trust's distributor, the Investment Adviser or any Sub-Adviser except
in
accordance with applicable laws, rules, regulations or effective exemption
orders issued by the SEC pursuant to the 1940 Act without the prior written
approval of the Trustees. The Trust agrees to provide the Investment Adviser,
and the Investment Adviser agrees to furnish to each Sub-Adviser, a list of
brokers and dealers which are "affiliated persons" of the Trust. The Investment
Adviser likewise agrees to furnish, and to cause each Sub-Adviser to furnish, to
the Trust, with respect to such Sub-Adviser, a list of Brokers which are
"affiliated persons" of the Investment Adviser and each Sub-Adviser. In no
instance will Portfolio securities be purchased from or sold to the Trust's
principal distributor, Investment Adviser, any Sub-Adviser or any affiliate
thereof, except to the extent permitted by an exemption order issued by the SEC
or by applicable law.
The Investment Adviser shall render regular reports to the Trustees of the
total brokerage business placed by it and any Sub-Adviser(s) and the manner in
which the allocation of such brokerage has been accomplished.
6. Expenses of the Portfolio. The Portfolio or Trust will pay, or will
-------------------------
enter into arrangements that require third parties to pay, all expenses other
than those expressly assumed by the Investment Adviser herein, which expenses
payable by the Portfolio or Trust shall include:
(a) Expenses of all audits by independent public accountants;
(b) Expenses of transfer agent, registrar, dividend disbursing agent
and shareholder recordkeeping services;
(c) Expenses of custodial services including recordkeeping services
provided by the custodian;
(d) Expenses of obtaining quotations for calculating the value of the
Portfolio's net assets;
(e) Salaries and other compensation of any of its executive officers
or employees, if any, who are not officers, directors,
stockholders or employees of the Investment Adviser, the
Administrator or the Distributor;
(f) Taxes levied against the Portfolio;
(g) Brokerage fees and commissions in connection with the purchase
and sale of portfolio securities for the Portfolio;
(h) Costs, including the interest expense, of borrowing money;
(i) Costs and/or fees incident to Trustees and shareholder meetings
of the Trust and the Portfolio, the preparation and mailings of
prospectuses and reports of the Portfolio to its existing
shareholders, the filing of reports with regulatory bodies, the
maintenance of the Portfolio's legal existence, and the
registration of shares with federal and state securities
authorities;
(j) Legal fees, including the legal fees related to the registration
and continued qualification of the Portfolio's shares for sale;
(k) Costs of printing any share certificates representing shares of
the Portfolio;
(l) Fees and expenses of Trustees who are not affiliated persons, as
defined in the 1940 Act, of the Investment Adviser, any Sub-
Adviser, the Distributor or any of their affiliates; and
(m) Its pro rata portion of the fidelity bond required by Section
17(g) of the 1940 Act, or of other insurance premiums.
7. Activities and Affiliates of the Investment Adviser. The Trustees
---------------------------------------------------
acknowledge that Investment Adviser or any Sub-Adviser, or one or more of its
affiliates, may have investment responsibilities or render investment advice to
or perform other investment advisory services for other individuals or entities
and that Investment Adviser or any Sub-Adviser, its affiliates or any of its or
their directors, officers, agents or employees may buy, sell or trade in any
securities for its or their respective accounts (such individuals, entities and
accounts hereinafter referred to as Affiliated Accounts). Subject to the
provisions of paragraph 2 hereof, the Trustees agree that Investment Adviser or
its affiliates and any Sub-Adviser(s) or its affiliates, may give advice or
exercise investment responsibility and take such other action with respect to
other Affiliated Accounts which may differ from the advice given or the timing
or nature of action taken with respect to the Portfolio, provided that
Investment Adviser or Sub-Adviser acts in good faith and in accordance with
applicable law or as permitted by an exemption order issued by the SEC, and
provided further, that it is Investment Adviser's and Sub-Adviser's policy to
allocate within its reasonable discretion, investment opportunities to the
Portfolio over a period of time on a fair and equitable basis relative to the
Affiliated Accounts, taking into account the investment objectives and policies
of the Portfolio and any specific investment restrictions applicable thereto.
The Trust acknowledges that one or more of the Affiliated Accounts may at any
time hold, acquire, increase, decrease, dispose of or otherwise deal with
positions in investments in which the Portfolio may have an interest from time
to time, whether in transactions which involve the Portfolio or otherwise.
Neither the Investment Adviser nor any Sub-Adviser shall have any obligation to
acquire for the Portfolio a position in any investment which any Affiliated
Account may acquire, and the Portfolio shall have no first refusal, coinvestment
or other rights in respect of any investment, either for the Portfolio or
otherwise.
8. Compensation of the Investment Adviser. (a) For all services provided
--------------------------------------
to the Portfolio pursuant to this Agreement, the Trust shall pay the Investment
Adviser, and the Investment Adviser agrees to accept as full compensation
therefor, an investment advisory fee, payable as soon as practicable after the
last day of each month, calculated using an annual rate of .65% (the "Annual
Rate"). The monthly investment advisory fee to be paid by the Trust to the
Investment Adviser shall be determined as of the close of business on the last
business day of each month by multiplying one-twelfth of the Annual Rate by the
Average Portfolio Net Assets (hereinafter defined), calculated monthly as of
such day.
(b) For purposes of this paragraph 8, the "Average Portfolio Net Assets"
shall be calculated monthly as of the last business day of each month and shall
mean the sum of the net assets of the Portfolio calculated each business day
during the month divided by the number of business days in the month (such net
assets to be determined as of the close of business each business day and
computed in the manner set forth in the Declaration of Trust of the Trust) .
(c) The Investment Adviser agrees that its compensation for any fiscal year
shall be reduced by the amount, if any, by which the expenses of the Portfolio
for such fiscal year exceed the most restrictive state Blue Sky expense
limitation in effect from time to time, to the extent required by such
limitation. The Investment Adviser shall refund to the Portfolio the amount of
any reduction of the Investment Adviser's compensation pursuant to this
paragraph 8, reduced by the amount of any rebate paid
directly to the Portfolio by any Sub-Adviser engaged by Investment Adviser, as
promptly as practicable after the end of such fiscal year, provided that the
Investment Adviser will not be required to pay the Portfolio an amount greater
than the fee paid to the Investment Adviser in respect of such year pursuant to
this Agreement. As used in this paragraph 8, "expenses" shall mean those
expenses included in the most restrictive state Blue Sky limitation, having the
broadest specification in such state's Blue Sky statute, and "expense
limitation" means a limit on the maximum annual expenses which may be incurred
by an investment company determined by multiplying a fixed percentage by the
average, or by multiplying more than one such percentage by different specified
amounts of the average, of the values of an investment company's net assets for
a fiscal year. The words "most restrictive state Blue Sky expense limitation"
shall be construed to result in the largest reduction of the Investment
Adviser's compensation for any fiscal year of the Portfolio; provided, however,
that nothing in this Agreement shall require the Investment Adviser to reduce
its fees if not required by an applicable statue or regulation referred to above
in this paragraph 8.
9. Proxies. The Trustees will vote all proxies solicited by or with
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respect to the issuers of securities in which assets of the Portfolio may be
invested from time to time, unless the Trustees delegate such right to the
Investment Adviser.
10. Liabilities of the Investment Adviser.
-------------------------------------
(a) The Investment Adviser will not be liable for any error or
judgment or mistake of law or for any loss suffered by the
Portfolio or the Trust in connection with the matters to which
this Agreement relates, except that the Investment Adviser shall
be liable to the Portfolio and the Trust for a loss resulting
from a breach of fiduciary duty with respect to the receipt of
compensation for services or a loss resulting from willful
misfeasance, bad faith or gross negligence on the part of the
Investment Adviser in the performance of duties or reckless
disregard by it of its obligations or duties under this
Agreement.
(b) The Investment Adviser shall indemnify and hold harmless the
Portfolio from any loss, cost, expense or damage resulting from
the failure of any Sub-Adviser to comply with (i) any statement
included in the Trust's registration statement furnished by
Investment Adviser for inclusion therein, or (ii) instructions
given by the Investment Adviser to any Sub-Adviser for the
purpose of ensuring the Portfolio's compliance with the
applicable requirements of the 1940 Act or of the requirements
of the Internal Revenue Code of 1986 applicable to regulated
investment companies, or of successor statutes; provided,
however, that the indemnification provided by this subparagraph
10(b) shall apply only to the extent that the Sub-Adviser is
liable to the Trust and, after demand by the Trust, is unable or
refuses to discharge its obligation to the Portfolio.
(c) No provision of this Agreement shall be construed to protect any
Trustee or officer of the Trust, or the Investment Adviser, from
liability in violation of Sections 17(h) and (i) of the 1940 Act.
11. Renewal, Amendment and Termination.
----------------------------------
(a) This Agreement shall become effective on the date first written
above and shall remain in force for a period of two (2) years
from such date ' and from year to year thereafter but only so
long as such continuance is specifically approved at least
annually (i) by the vote of a majority of the Trustees who are
not interested persons of the Portfolio or the Investment
Adviser, cast in person at a meeting called for the purpose of
voting on
such approval and by a vote of the Board of Trustees or (ii) by
the vote of a majority of the outstanding voting securities of
the Portfolio. The aforesaid provision that this Agreement may be
continued "annually" shall be construed in a manner consistent
with the 1940 Act and the rules and regulations thereunder.
(b) This Agreement may be amended at any time, but only by written
agreement between the Trust and the Investment Adviser, which
amendment is subject to the approval of the Trustees and the
shareholders of the Trust in the manner required by the 1940 Act,
subject to any applicable exemption order of the SEC modifying
the provisions of the 1940 Act with respect to approval of
amendments to this Agreement.
(c) This Agreement:
(i) may at any time be terminated without the payment of any
penalty either by vote of the Trustees or by vote of a
majority of the outstanding voting securities of the
Portfolio, on sixty (60) days' written notice to the
Investment Adviser;
(ii) shall immediately terminate in the event of its
assignment; and
(iii) may be terminated by the Investment Adviser on sixty (60)
days' written notice to the Trust.
(d) As used in this Section 11, the terms "assignment", "interested
person" and "vote of a majority of the outstanding voting
securities" shall have the meanings set forth in the 1940 Act and
the rules and regulations thereunder, subject to any applicable
orders of exemption issued by the SEC.
12. Books and Records. (a) The Trustees shall provide to the Investment
-----------------
Adviser copies of the Trust's most recent prospectus and statement of additional
information (as each may be amended or supplemented from time to time) which
relate to any class of shares representing interests in the Portfolio.
(b) In compliance with the requirements of Rule 3la-3 of the rules
promulgated under the 1940 Act ("Rules"), the Investment Adviser hereby agrees
that all records which it maintains for the Trust are the property of the Trust
and further agrees to surrender promptly to the Trust any such records upon the
Trust's request. The Investment Adviser further agrees to preserve for the
periods prescribed by Rule 3la-2, the records required to be maintained by the
Investment Adviser hereunder pursuant to Rule 3la-1 of the Rules.
13. Notices. All notices, requests, demands or other communications
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hereunder shall be in writing and shall be deemed given, if delivered
personally, on the day delivered or if mailed, by certified or registered mail,
postage prepaid, return receipt requested, three (3) days after placement in the
United States mail, to the addresses below:
If to Trust: First Funds
c/o Xxxxx X. Xxxxx
ALPS Mutual Fund Services, Inc.
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxxx X. Xxxxxxxxxxxxx, Esq.
Baker, Donelson, Bearman, Caldwell, P.C.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
If to Investment Adviser: First Tennessee Bank National Association
c/o C. Xxxxxxx Xxxxx, III
Senior Vice President and Manager
0000 Xxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx, XX 00000
With a copy to: Xxx Xxxxx, Esq.
Martin, Tate, Xxxxxx & Xxxxxxx, P.C.
00 X. Xxxxx Xxxxxx, xxxx Xxxxx
Xxxxxxx, XX 00000
14. Severability. If any provision of this Agreement shall be held or
------------
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
15. Limitation on Liability. Investment Adviser is hereby expressly put
-----------------------
on notice of the limitation of shareholder liability as set forth in the
Declaration of Trust and agrees that obligations assumed by the Portfolio
pursuant to this Agreement shall be limited in all cases to the Portfolio and
its assets. Investment Adviser agrees that it shall not seek satisfaction of
any such obligation from the shareholders or any individual shareholder of the
Portfolio, nor from the Trustees or any individual Trustee of the Portfolio.
16. Governing Law. To the extent that state law has not been preempted by
-------------
the provisions of any law of the United States heretofore or hereafter enacted,
as the same may be amended from time to time, this Agreement shall be
administered, construed and enforced according to the laws of the State of
Tennessee without giving effect to the choice of laws provisions thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, as of the day and year first written above.
FIRST FUNDS
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx, President
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: /s/ C. Xxxxxxx Xxxxx
--------------------
C. Xxxxxxx Xxxxx, III, Senior Vice President and
Manager
INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
--------------------------------------------
THIS INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT is made as of this
15/th/ day of February, 1993, between THE MASTERS GROUP OF MUTUAL FUNDS, a
business trust organized under the laws of the Commonwealth of Massachusetts
(the "Trust"), on behalf of its TOTAL RETURN FIXED INCOME PORTFOLIO (the
"Portfolio") and FIRST TENNESSEE BANK NATIONAL ASSOCIATION, a national banking
association (the "Investment Adviser").
WHEREAS, the Trust has been organized to operate as an investment company
registered under the Investment Company Act of 1940 (the "1940 Act") with
multiple series of shares (hereinafter referred to as Classes) having varying
preferences, limitations and relative rights, and to invest and reinvest the
assets of the Portfolio in securities pursuant to investment objectives and
policies for the Portfolio;
WHEREAS, the Portfolio desires to avail itself of the services,
information, advice, assistance and facilities of an investment adviser and to
have an investment adviser provide or perform for it various investment
advisory, statistical, research, portfolio investment adviser selection and
other services as set forth more fully herein;
NOW, THEREFORE, Trust, on behalf of the Portfolio, and Investment Adviser
agree as follows:
1. Employment of the Investment Adviser. The Trust hereby employs the
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Investment Adviser to provide investment advice and to manage the investment and
reinvestment of the Portfolio's assets in the manner set forth in Section 2A of
this Agreement, subject to the direction of the Trustees, for the period, in the
manner, and on the terms hereinafter set forth. The Investment Adviser hereby
accepts such employment and agrees during such period to render the services and
to assume the obligations herein set forth. The investment Adviser shall for
all purposes herein be deemed to be an independent contractor and shall, except
as expressly provided or authorized (whether herein or otherwise), have no
authority to act or represent the Trust in any way or otherwise be deemed an
agent of the Trust.
2. Obligation of and Services to be Provided by the Investment Adviser.
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The Investment Adviser undertakes to provide the services hereinafter set forth
and to assume the following obligations:
A. Investment Advisory Services.
(a) The Investment Adviser shall have overall responsibility for the
day-to-day management and investment of the Portfolio's assets
and securities portfolio subject to and in accordance with the
investment objectives and policies of the Portfolio, and any
directions which the Trustees and officers of the Trust may issue
to the Investment Adviser from time to time, and shall perform
the following services: provide or cause to be provided
investment research and credit analysis concerning the
Portfolio's investments, (ii) conduct or cause to be conducted a
continual program of investment of the Portfolio's assets, (iii)
place or cause to be placed orders for all purchases and sales of
the investments made for the Portfolio, and (iv) maintain or
cause to be maintained the books and records required in
connection with its duties hereunder.
(b) The Investment Adviser shall advise the Trustees of the Trust
regarding overall investment programs and strategies for the
Portfolio, revision of such programs as
necessary, and shall monitor and report periodically to the
Trustees concerning the implementation of such programs and
strategies.
(c) The Investment Adviser, with the prior approval of the Trustees
(and the shareholders to the extent required by applicable law)
as to particular appointments, shall be permitted to (i) engage
one or more persons or companies ("Sub-Advisers"), which may have
full investment discretion to make all determinations with
respect to the investment and reinvestment of all or any portion
of the Portfolio's assets and the purchase and sale of all or any
portion of the Portfolio securities, subject to the terms and
conditions of this Agreement and the written agreement with any
Sub-Adviser; and (ii) take such steps as may be necessary to
implement such appointment.
(d) The Investment Adviser shall be solely responsible for paying
the fees and expenses of any Sub-Adviser for its services to the
Investment Adviser and the Portfolio. Except for instructions or
advice given to the Sub-Adviser by the Investment Adviser, the
Investment Adviser shall not be responsible or liable for the
investment merits of any decision by the Sub-Adviser to purchase,
hold or sell a security for the Portfolio.
(e) In the event one or more Sub-Advisers is appointed pursuant to
subparagraph (c) hereof, the Investment Adviser shall (i) monitor
and evaluate the investment performance of each Sub-Adviser
employed by the Investment Adviser for the Portfolio; (ii)
allocate the portion of the Portfolio's assets to be managed by
each Sub-Adviser; (iii) recommend changes in or additional Sub-
Advisers when appropriate; and (iv) compensate each Sub-Adviser.
(f) The Investment Adviser shall render such reports to the Trustees,
at regular meetings thereof, as the Trustees may reasonably
request regarding, among other things, the investment performance
of the Portfolio, including, if any Sub-Adviser has been
appointed, the investment performance of each Sub-Adviser.
(g) The Investment Adviser will monitor and coordinate, to the extent
necessary, the activities of the custodian transfer agent,
distributor, administrator and pricing agent insofar as their
respective activities relate to the duties and obligations of the
Investment Adviser hereunder.
B. Provision of Information Necessary for Preparation of Securities
Registration Statements, Amendments and Other Materials.
The Investment Adviser will make available and provide such financial,
accounting and statistical information related to its duties and
responsibilities hereunder as required by the Trustees and necessary
for the preparation of registration statement, reports and other
documents required by federal and state securities laws and such other
information as the Trustees may reasonably request for use by the
Trust and its distributor for the underwriting and distribution of the
Portfolio's shares.
C. Other Obligations and Services.
The Investment Adviser agrees to make available its officers and
employees to the Trustees and officers of the Trust for consultation
and discussions regarding the investment advisory activities of the
Portfolio.
3. Covenants by Investment Adviser. The Investment Adviser agrees with
-------------------------------
respect to the services provided to the Portfolio that it:
(a) will conform with all applicable rules and regulations of the
Securities and Exchange Commission ("SEC") and will in addition
conduct its activities under this Agreement in accordance with
applicable regulations of the Office of the Comptroller of the
Currency pertaining to the investment advisory activities of
national banks which are applicable to the Investment Adviser;
(b) will not make loans to any person for the purpose of purchasing
or carrying Portfolio shares, or make loans to the Trust;
(c) will not purchase shares of the Portfolio for its own investment
account;
(d) will maintain all books and records with respect to the
securities transactions of the Portfolio and furnish the Trustees
such periodic and special reports as the Trustees may request
with respect to the Portfolio;
(e) will treat confidentially and as proprietary information of the
Trust all records and other information relative to the Trust and
the Portfolio and prior, present or potential shareholders (other
than any information which Investment Adviser may have obtained
about shareholders from other business relationships with such
shareholders), and will not use such records and information for
any purpose other than performance of its responsibilities and
duties hereunder (except after prior notification to and approval
in writing by the Trust, which approval shall not be unreasonably
withheld and may not be withheld and will be deemed granted where
the Investment Adviser may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, when so
requested by the Trust or when otherwise required or permitted by
law); and
(f) will immediately notify the Trust of the occurrence of any event
which would disqualify Investment Adviser or any Sub-Adviser from
serving as investment adviser of an investment company.
4. Transaction Procedures. All investment transactions on behalf of the
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Portfolio will be compensated by payment to or delivery by the custodian for the
Portfolio duly appointed by the Trustees of the Trust (the "Custodian"), or such
approved depositories or agents duly appointed by the Trustees and as may be
designated by the Custodian in writing, as custodian for the Portfolio, of all
cash and/or securities due to or from the Portfolio, and neither Investment
Adviser nor any Sub-Adviser shall have possession or custody thereof or any
responsibility or liability with respect thereto. The Investment Adviser or any
Sub-Adviser effecting transactions on behalf of the Portfolio shall advise the
Custodian of all investment orders for the Portfolio placed by it with brokers,
dealers, banks and other parties ("Brokers"). The Trustees shall issue, or
cause to be issued, to the Custodian such instructions as may be appropriate in
connection with the settlement of any transaction initiated by the Investment
Adviser or any Sub-Adviser. The Portfolio shall be responsible for all
custodial arrangements and the payment of all custodial charges and fees, and,
upon the giving of proper instructions to the Custodian, Investment Adviser
shall have no responsibility or liability with respect to custodian arrangements
or the acts, omissions or other conduct of the Custodian, except that it shall
be the responsibility of the Investment Adviser or any Sub-Adviser to take
appropriate action if the Custodian fails properly to confirm execution of the
instructions to the Investment Adviser or any Sub-Adviser in a written form duly
agreed upon by the Custodian and the Investment Adviser or any Sub-Adviser.
5. Execution and Allocation of Portfolio Brokerage. The Investment
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Adviser shall place, or shall cause each Sub-Adviser to place, subject to the
limitations contained in this paragraph 5, on behalf of the Portfolio, orders
for the execution of the Portfolio's securities transactions. Neither the
Investment Adviser nor any Sub-Adviser is authorized by the Trust to take any
action, including the purchase or sale of securities for the account of the
Portfolio, (a) in contravention of (i) any investment restrictions set forth in
the 1940 Act and the rules thereunder; (ii) specific instructions adopted by the
Trustees and communicated to the Investment Adviser; (iii) the investment
objectives, policies and restrictions of the Portfolio as set forth in the
Trust's current registration statement, as amended from time to time; or (iv)
instructions from the Trustees to the Investment Adviser or from the Investment
Adviser to any Sub-Adviser, or (b) which would have the effect of causing the
Trust to fail to qualify or to cease to qualify as a regulated investment
company under the Internal Revenue Code of 1986, as amended, or any succeeding
statute.
The Investment Adviser or, if any Sub-Adviser shall be appointed, then the
Sub-Adviser, may place orders pursuant to its investment determinations for the
Portfolio either directly with the issuer or with any Brokers. In placing
orders with any Broker, the Investment Adviser or any Sub-Adviser will consider
the experience and skill of a Broker's securities traders as well as the
Broker's financial responsibility and administrative efficiency. The Investment
Adviser or any Sub-Adviser will attempt to obtain the best price and the most
favorable execution of its orders with any Brokers; however, in so doing, the
Investment Adviser or any Sub-Adviser may consider, subject to the approval of
the Trustees, the research, statistical, and related brokerage services provided
or to be provided by such Broker to the Portfolio. A commission paid to such
Brokers may be higher than that which another Broker would have charged for
effecting the same transaction, provided that the Investment Adviser or any Sub-
Adviser determines in good faith that such commission is reasonable in relation
to the value of the brokerage and research services provided by such Broker when
viewed in terms of either the particular transaction or the overall
responsibilities of the Investment Adviser or any Sub-Adviser with respect to
the accounts as to which it exercises investment discretion. It is understood
that neither the Investment Adviser nor any Sub-Adviser has adopted a formula
for selection of Brokers for the execution of the Portfolio's investment
transactions on occasions when either the Investment Adviser or any Sub-Adviser
deems the purchase or sale of a security to be in the best interest of the
Portfolio as well as other clients, the Investment Adviser or Sub-Adviser, to
the extent permitted by applicable laws and regulations, may, but shall be under
no obligation to, aggregate the securities to be sold or purchased in order to
obtain the most favorable price or lower brokerage commissions and efficient
execution. In such event, allocation of the securities so purchased or sold, as
well as expenses incurred in the transaction, will be made by the Investment
Adviser or Sub-Adviser in the manner it considers to be the most equitable and
consistent with its fiduciary obligations to the Portfolio and to such other
clients.
The Investment Adviser will not, and will cause each Sub-Adviser not to,
execute any Portfolio transactions for the account of the Portfolio with a
Broker which is an "affiliated person" (as defined in the 0000 Xxx) of the
Trust, the Trust's distributor, the Investment Adviser or any Sub-Adviser except
in accordance with applicable laws, rules, regulations or effective exemption
orders issued by the SEC pursuant to the 1940 Act without the prior written
approval of the Trustees. The Trust agrees to provide
the Investment Adviser, and the Investment Adviser agrees to furnish to each
Sub-Adviser, a list of brokers and dealers, which are "affiliated persons" of
the Trust. The Investment Adviser likewise agrees to furnish, and to cause each
Sub-Adviser to furnish, to the Trust, with respect to such Sub-Adviser, a list
of Brokers, which are "affiliated persons" of the Investment Adviser and each
Sub-Adviser. In no instance will Portfolio securities be purchased from or sold
to the Trust's principal distributor, Investment Adviser, any Sub-Adviser or any
affiliate thereof, except to the extent permitted by an exemption order issued
by the SEC or by applicable law.
The Investment Adviser shall render regular reports to the Trustees of the
total brokerage business placed by it and any Sub-Adviser(s) and the manner in
which the allocation of such brokerage has been accomplished.
6. Expenses of the Portfolio. The Portfolio or Trust will pay, or will
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enter into arrangements that require third parties to pay, all expenses other
than those expressly assumed by the Investment Adviser herein, which expenses
payable by the Portfolio or Trust shall include:
(a) Expenses of all audits by independent public accountants;
(b) Expenses of transfer agent, registrar, dividend disbursing agent
and shareholder recordkeeping services;
(c) Expenses of custodial services including recordkeeping services
provided by the custodian;
(d) Expenses of obtaining quotations for calculating the value of the
Portfolio's net assets;
(e) Salaries and other compensation of any of its executive officers
or employees, if any, who are not officers, directors,
stockholders or employees of the Investment Adviser, the
Administrator or the Distributor;
(f) Taxes levied against the Portfolio;
(g) Brokerage fees and commissions in connection with the purchase
and sale of portfolio securities for the Portfolio;
(h) Costs, including the interest expense, of borrowing money;
(i) Costs and/or fees incident to Trustees and shareholder meetings
of the Trust and the Portfolio, the preparation and mailings of
prospectuses and reports of the Portfolio to its existing
shareholders, the filing of reports with regulatory bodies, the
maintenance of the Portfolio's legal existence, and the
registration of shares with federal and state securities
authorities;
(j) Legal fees, including the legal fees related to the registration
and continued qualification of the Portfolio's shares for sale;
(k) Costs of printing any share certificates representing shares of
the Portfolio;
(l) Fees and expenses of Trustees who are not affiliated persons, as
defined in the 1940 Act, of the Investment Adviser, any Sub-
Adviser, the Distributor or any of their affiliates; and
(m) Its pro rata portion of the fidelity bond required by Section
17(g) of the 1940 Act, or of other insurance premiums.
7. Activities and Affiliates of the Investment Adviser. The Trustees
---------------------------------------------------
acknowledge that Investment Adviser or any Sub-Adviser, or one or more of its
affiliates, may have investment responsibilities or render investment advice to
or perform other investment advisory services for other individuals or entities
and that Investment Adviser or any Sub-Adviser, its affiliates or any of its or
their directors, officers, agents or employees may buy, sell or trade in any
securities for its or their respective accounts (such individuals, entities and
accounts hereinafter referred to as Affiliated Accounts). Subject to the
provisions of paragraph 2 hereof, the Trustees agree that Investment Adviser or
its affiliates and any Sub-Adviser(s) or its affiliates, may give advice or
exercise investment responsibility and take such other action with respect to
other Affiliated Accounts which may differ from the advice given or the timing
or nature of action taken with respect to the Portfolio, provided that
Investment Adviser or Sub-Adviser acts in good faith and in accordance with
applicable law or as permitted by an exemption order issued by the SEC, and
provided further, that it is Investment Adviser's and Sub-Adviser's policy to
allocate within its reasonable discretion, investment opportunities to the
Portfolio over a period of time on a fair and equitable basis relative to the
Affiliated Accounts, taking into account the investment objectives and policies
of the Portfolio and any specific investment restrictions applicable thereto.
The Trust acknowledges that one or more of the Affiliated Accounts may at any
time hold, acquire, increase, decrease, dispose of or otherwise deal with
positions in investments in which the Portfolio may have an interest from time
to time, whether in transactions which involve the Portfolio or otherwise.
Neither the Investment Adviser nor any Sub-Adviser shall have any obligation to
acquire for the Portfolio a position in any investment which any Affiliated
Account may acquire, and the Portfolio shall have no first refusal, coinvestment
or other rights in respect of any investment, either for the Portfolio or
otherwise.
8. Compensation of the Investment Adviser. (a) For all services provided
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to the Portfolio pursuant to this Agreement, the Trust shall pay the Investment
Adviser, and the Investment Adviser agrees to accept as full compensation
therefor, an investment advisory fee, payable as soon as practicable after the
last day of each month, calculated using an annual rate of .65% (the "Annual
Rate"). The monthly investment advisory fee to be paid by the Trust to the
Investment Adviser shall be determined as of the close of business on the last
business day of each month by multiplying one-twelfth of the Annual Rate by the
Average Portfolio Net Assets (hereinafter defined), calculated monthly as of
such day.
(b) For purposes of this paragraph 8, the "Average Portfolio Net Assets"
shall be calculated monthly as of the last business day of each month and shall
mean the sum of the net assets of the Portfolio calculated each business day
during the month divided by the number of business days in the month (such net
assets to be determined as of the close of business each business day and
computed in the manner set forth in the Declaration of Trust of the Trust).
(c) The Investment Adviser agrees that its compensation for any fiscal year
shall be reduced by the amount, if any, by which the expenses of the Portfolio
for such fiscal year exceed the most restrictive state Blue Sky expense
limitation in effect from time to time, to the extent required by such
limitation. The Investment Adviser shall refund to the Portfolio the amount of
any reduction of the Investment Adviser's compensation pursuant to this
paragraph 8, reduced by the amount of any rebate paid directly to the Portfolio
by any Sub-Adviser engaged by Investment Adviser, as promptly as practicable
after the end of such fiscal year, provided that the Investment Adviser will not
be required to pay the Portfolio an amount greater than the fee paid to the
Investment Adviser in respect of such year pursuant to this Agreement. As used
in this paragraph 8, "expenses" shall mean those expenses included in the most
restrictive state Blue Sky limitation, having the broadest specification in such
state's Blue Sky statute, and "expense limitation" means a limit on the maximum
annual expenses which may be incurred by an investment company determined by
multiplying a fixed percentage by the average, or by multiplying more than one
such percentage by different specified amounts of the average, of the values of
an investment company's net assets for a fiscal year. The words "most
restrictive state Blue Sky expense limitation" shall be construed to result in
the largest reduction of the Investment Adviser's compensation for any fiscal
year of the Portfolio; provided, however, that nothing in this Agreement shall
require the Investment Adviser to reduce its fees if not required by an
applicable statue or regulation referred to above in this paragraph 8.
9. Proxies. The Trustees will vote all proxies solicited by or with
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respect to the issuers of securities, in which assets of the Portfolio may be
invested from time to time, unless the Trustees delegate such right to the
Investment Adviser.
10. Liabilities of the Investment Adviser.
-------------------------------------
(a) The Investment Adviser will not be liable for any error or
judgment or mistake of law or for any loss suffered by the
Portfolio or the Trust in connection with the matters to which
this Agreement relates, except that the Investment Adviser shall
be liable to the Portfolio and the Trust for a loss resulting
from a breach of fiduciary duty with respect to the receipt of
compensation for services or a loss resulting from willful
misfeasance, bad faith or gross negligence on the part of the
Investment Adviser in the performance of duties or reckless
disregard by it of its obligations or duties under this
Agreement.
(b) The Investment Adviser shall indemnify and hold harmless the
Portfolio from any loss, cost, expense or damage resulting from
the failure of any Sub-Adviser to comply with (i) any statement
included in the Trust's registration statement furnished by
Investment Adviser for inclusion therein, or (ii) instructions
given by the Investment Adviser to any Sub-Adviser for the
purpose of ensuring the Portfolio's compliance with the
applicable requirements of the 1940 Act or of the requirements of
the Internal Revenue Code of 1986 applicable to regulated
investment companies, or of successor statutes; provided,
however, that the indemnification provided by this subparagraph
10(b) shall apply only to the extent that the Sub-Adviser is
liable to the Trust and, after demand by the Trust, is unable or
refuses to discharge its obligation to the Portfolio.
(c) No provision of this Agreement shall be construed to protect any
Trustee or officer of the Trust, or the Investment Adviser, from
liability in violation of Sections 17(h) and (i) of the 1940 Act.
11. Renewal, Amendment and Termination.
----------------------------------
(a) This Agreement shall become effective on the date first written
above and shall remain in force for a period of two (2) years
from such date ' and from year to year thereafter but only so
long as such continuance is specifically approved at least
annually (i) by
the vote of a majority of the Trustees who are not interested
persons of the Portfolio or the Investment Adviser, cast in
person at a meeting called for the purpose of voting on such
approval and by a vote of the Board of Trustees or (ii) by the
vote of a majority of the outstanding voting securities of the
Portfolio. The aforesaid provision that this Agreement may be
continued "annually" shall be construed in a manner consistent
with the 1940 Act and the rules and regulations thereunder.
(b) This Agreement may be amended at any time, but only by written
agreement between the Trust and the Investment Adviser, which
amendment is subject to the approval of the Trustees and the
shareholders of the Trust in the manner required by the 1940 Act,
subject to any applicable exemption order of the SEC modifying
the provisions of the 1940 Act with respect to approval of
amendments to this Agreement.
(c) This Agreement:
(i) may at any time be terminated without the payment of any
penalty either by vote of the Trustees or by vote of a
majority of the outstanding voting securities of the
Portfolio, on sixty (60) days' written notice to the
Investment Adviser;
(ii) shall immediately terminate in the event of its assignment;
and
(iii) may be terminated by the Investment Adviser on sixty (60)
days' written notice to the Trust.
(d) As used in this Section 11, the terms "assignment", "interested
person" and "vote of a majority of the outstanding voting
securities" shall have the meanings set forth in the 1940 Act and
the rules and regulations thereunder, subject to any applicable
orders of exemption issued by the SEC.
12. Books and Records. (a) The Trustees shall provide to the Investment
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Adviser copies of the Trust's most recent prospectus and statement of additional
information (as each may be amended or supplemented from time to time) which
relate to any class of shares representing interests in the Portfolio.
(b) In compliance with the requirements of Rule 3la-3 of the rules
promulgated under the 1940 Act ("Rules"), the Investment Adviser hereby agrees
that all records which it maintains for the Trust are the property of the Trust
and further agrees to surrender promptly to the Trust any such records upon the
Trust's request. The Investment Adviser further agrees to preserve for the
periods prescribed by Rule 3la-2, the records required to be maintained by the
Investment Adviser hereunder pursuant to Rule 3la-1 of the Rules.
13. Notices. All notices, requests, demands or other communications
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hereunder shall be in writing and shall be deemed given, if delivered
personally, on the day delivered or if mailed, by certified or registered mail,
postage prepaid, return receipt requested, three (3) days after placement in the
United States mail, to the addresses below:
If to Trust: First Funds
c/o Xxxxx X. Xxxxx
ALPS Mutual Fund Services, Inc.
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxxx X. Xxxxxxxxxxxxx, Esq.
Baker, Donelson, Bearman, Caldwell, P.C.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
If to Investment Adviser: First Tennessee Bank National Association
c/o C. Xxxxxxx Xxxxx, III
Senior Vice President and Manager
0000 Xxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx, XX 00000
With a copy to: Xxx Xxxxx, Esq.
Martin, Tate, Xxxxxx & Xxxxxxx, P.C.
00 X. Xxxxx Xxxxxx, xxxx Xxxxx
Xxxxxxx, XX 00000
14. Severability. If any provision of this Agreement shall be held or
------------
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
15. Limitation on Liability. Investment Adviser is hereby expressly put
-----------------------
on notice of the limitation of shareholder liability as set forth in the
Declaration of Trust and agrees that obligations assumed by the Portfolio
pursuant to this Agreement shall be limited in all cases to the Portfolio and
its assets. Investment Adviser agrees that it shall not seek satisfaction of
any such obligation from the shareholders or any individual shareholder of the
Portfolio, nor from the Trustees or any individual Trustee of the Portfolio.
16. Governing Law. To the extent that state law has not been preempted by
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the provisions of any law of the United States heretofore or hereafter enacted,
as the same may be amended from time to time, this Agreement shall be
administered, construed and enforced according to the laws of the State of
Tennessee without giving effect to the choice of laws provisions thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, as of the day and year first written above.
THE MASTERS GROUP OF MUTUAL FUNDS
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx, President
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: /s/ C. Xxxxxxx Xxxxx
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C. Xxxxxxx Xxxxx, III, Senior Vice President and
Manager
