AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
AMENDED
AND RESTATED INVESTMENT ADVISORY AGREEMENT
AMENDED
AND RESTATED INVESTMENT ADVISORY AGREEMENT made the 14th
day of
March, 2005, and effective as of the 1st
day of
July, 2005, by and between Xxxxxx Series Trust, a Delaware business trust (the
“Trust”), and Xxxxxx Capital Management, L.L.C., a Delaware limited liability
corporation (the “Adviser”):
WHEREAS,
the Trust engages in business as an open-end, non-diversified management
investment company and is registered as such under the Investment Company Act
of
1940, as amended (the “1940 Act”); and
WHEREAS,
the Adviser is registered as an investment adviser under the Investment Advisers
Act of 1940 (the “Advisers Act”), and engages in the business of acting as an
investment adviser; and
WHEREAS,
the Trust and the Adviser entered into an Investment Advisory Agreement pursuant
to which the Adviser rendered investment advisory services for the sole
portfolio of the Trust, Xxxxxx Value Fund (the “Fund”), and provides certain
other services to the Trust in the manner and on the terms and conditions set
forth in the Investment Advisory Agreement; and
WHEREAS,
the Investment Advisory Agreement was approved by the shareholders of the Trust
and became effective on March 13, 1997; and
WHEREAS,
the Trust and the Adviser desire to enter into an Amended and Restated
Investment Advisory Agreement (the “Agreement”) on the terms and conditions
hereinafter set forth:
NOW,
THEREFORE, this Agreement
W
I T N E
S S E T H:
that
in
consideration of the premises and the mutual covenants hereinafter contained,
the Trust and the Adviser agree as follows:
1. |
The
Trust hereby retains the Adviser to act as investment adviser to
the Fund
and, subject to the supervision of the Board of Trustees of the Trust,
to
manage the investment activities of the Fund and to provide certain
other
services to the Trust as hereinafter set forth. Without limiting
the
generality of the foregoing, the Adviser shall: obtain and evaluate
such
information and advice relating to the economy, securities markets,
and
securities as it deems necessary or useful to discharge its duties
hereunder; continuously manage the assets of the Fund in a manner
consistent with the investment objectives, policies and restrictions
of
the Fund and applicable laws and regulations; determine the securities
to
be purchased, sold or otherwise disposed of by the Fund and the timing
of
such purchases, sales and dispositions; and take such further action,
including the placing of purchase and sale orders and the voting
of
securities on behalf of the Fund, as the Adviser shall deem necessary
or
appropriate. The Adviser shall furnish to or place at the disposal
of the
Trust such of the information, evaluations, analyses and opinions
formulated or obtained by the Adviser in the discharge of its duties
as
the Trust may, from time to time, reasonably
request.
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2. |
The
Adviser shall assist in the selection of and the negotiation of agreements
with, and monitor the quality of services provided by, the Trust’s
administrator, custodian, transfer agent, and other organizations
which
may provide services to the Trust (but the Trust shall pay the fees
and
expenses of the administrator, custodian and transfer agent and such
other
organizations and the Adviser shall not be responsible for the acts
or
omissions of such service providers). The Adviser shall also provide
such
additional management and administrative services as may be required
in
connection with the business affairs and operations of the Trust
beyond
those furnished by the Trust’s
administrator.
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3. |
The
Adviser shall, at its own expense, maintain such staff and employ
or
retain such personnel and consult with such other persons as may
be
necessary to render the services required to be provided by the Adviser
or
furnished to the Trust under this Agreement. Without limiting the
generality of the foregoing, the staff and personnel of the Adviser
shall
be deemed to include persons employed or otherwise retained by the
Adviser
to furnish statistical and other factual data, advice regarding economic
factors and trends, information with respect to technical and scientific
developments, and such other information, advice and assistance as
the
Adviser may desire.
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4. |
The
Trust will, from time to time, furnish or otherwise make available
to the
Adviser such financial reports, proxy statements, policies and procedures
and other information relating to the business and affairs of the
Fund and
the Trust as the Adviser may reasonably require in order to discharge
its
duties and obligations hereunder.
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5. |
The
Adviser shall bear the cost of rendering the services to be performed
by
it under this Agreement, and shall provide the Trust with such office
space, facilities, equipment, clerical help, and other personnel
and
services as the Trust shall reasonably require in the conduct of
its
business. The Adviser shall also bear the cost of telephone service,
heat,
light, power and other utilities provided to the Trust. The salaries
of
officers of the Trust, and the fees and expenses of Trustees of the
Trust,
who are also directors, officers or employees of the Adviser, or
who are
officers or employees of any company affiliated with the Adviser,
shall be
paid and borne by the Adviser or such affiliated
company.
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6. |
The
Trust assumes and shall pay or cause to be paid all expenses of the
Trust
not expressly assumed by the Adviser under this Agreement, including
without limitation: any payments pursuant to any plan of distribution
adopted by the Trust; the fees, charges and expenses of any registrar,
custodian, accounting agent, administrator, stock transfer and dividend
disbursing agent; brokerage commissions; taxes; registration costs
of the
Trust and its shares under federal and state securities laws; the
costs
and expenses of engraving and printing stock certificates; the costs
and
expenses of preparing, printing, including typesetting, and distributing
prospectuses and statements of additional information of the Trust
and the
Fund and supplements thereto to the Trust’s shareholders; all expenses of
shareholders’ and Trustees’ meetings and of preparing, printing and
mailing proxy statements and reports to shareholders; fees and travel
expenses of Trustees and members of any advisory board or committee
who
are not also officers, directors or employees of the Adviser or who
are
not officers or employees of any company affiliated with the Adviser;
all
expenses incident to any dividend, withdrawal or redemption options;
charges and expenses of any outside service used for pricing of the
Fund’s
shares; fees and expenses of legal counsel to the Trust and its Trustees;
fees and expenses of the Trust’s independent accountants; membership dues
of industry associations; interest payable on borrowings; postage;
insurance premiums on property or personnel (including officers and
Trustees) of the Trust which inure to its benefit; and extraordinary
expenses (including but not limited to, legal claims and liabilities
and
litigation costs and any indemnification related
thereto).
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7. |
As
full compensation for the services and facilities furnished to the
Fund
and the Trust and the expenses assumed by the Adviser under this
Agreement, the Trust shall pay to the Adviser a fee, as calculated
in
accordance with Schedule A hereto. This fee shall be paid monthly,
in
arrears, promptly after the end of the month. Subject to the provisions
of
paragraph 8 hereof, payment of the Adviser’s compensation for the
preceding month shall be made as promptly as possible after completion
of
the necessary computations.
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8. |
In
the event the operating expenses of the Fund including amounts payable
to
the Adviser pursuant to paragraph 7 hereof, for any fiscal year ending
on
a date on which this Agreement is in effect, exceed any expense limitation
applicable to the Fund under any state securities laws or regulations
(as
such limitations may be raised or lowered or waived upon application
of
the Trust or the Adviser from time to time) and which are not pre-empted
by federal law, the Adviser shall reduce its fee to the extent of
such
excess and, if required pursuant to any such laws or regulations,
will
reimburse the Trust for annual operating expenses of the Fund in
excess of
such expense limitation; provided, however, that there shall be excluded
from expenses the amount of any interest, taxes, brokerage commissions,
distribution fees and extraordinary expenses (including but not limited
to
legal claims and liabilities and litigation costs and any indemnification
relating thereto) paid or payable by the Fund to the extent permissible
under applicable laws and regulations. The amount of any such reduction
in
fee or reimbursement of expenses shall be calculated and accrued
daily and
settled on a monthly basis, based upon the expense limitation applicable
to the Fund as at the end of the last business day of the month.
Should
two or more such expense limitations be applicable as at the end
of the
last business day of the month, that expense limitation which results
in
the largest reduction in the Adviser’s fee shall be
applicable.
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For
purposes of this provision, should any applicable expense limitation be based
upon the gross income of the Fund, such gross income shall include, but not
be
limited to, interest on debt securities held by the Fund accrued to and
including the last day of the Fund’s fiscal year, and dividends declared on
equity securities held by the Fund, the record dates for which fall on or prior
to the last day of such fiscal year, but shall not include gains from the sale
of securities.
9. |
The
Adviser will use its best efforts in the supervision and management
of the
investment activities of the Trust and in providing services hereunder,
but in the absence of willful misfeasance, bad faith, negligence
or
reckless disregard of its obligations hereunder, the Adviser shall
not be
liable to the Trust or the Fund for any error of judgment for any
mistake
of law or for any act or omission by the
Adviser.
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10. |
Nothing
contained in this Agreement shall prevent the Adviser or any affiliated
person of the Adviser from acting as investment adviser or manager
for any
other person, firm or corporation and shall not in any way bind or
restrict the Adviser or any such affiliated person from buying, selling
or
trading any securities or commodities for their own accounts or for
the
account of others for whom they may be acting. Nothing in this Agreement
shall limit or restrict the right of any director, officer or employee
of
the Adviser 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 or dissimilar
nature.
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11. |
The
Trust acknowledges and agrees, in accordance with the provisions
of
Article VIII, Section 9 of the Trust’s Declaration of Trust dated December
19, 1996 (the “Declaration of Trust”), that the name “Xxxxxx” and the
Xxxxxx logo and all rights to the use of such name or logo as part
of the
name of the Trust and the Fund belong to Granite Capital International
Group L.P.
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12. |
This
Agreement shall remain in effect for an initial term expiring two
years
after the date of execution of this Agreement, and shall continue
in
effect from year to year thereafter provided such continuance is
approved
at least annually by the vote of a majority of the outstanding voting
securities of the Fund, as defined by the 1940 Act and the rules
thereunder, or by the Board of Trustees of the Trust; provided that
in
either event such continuance is also approved by a majority of the
Trustees of the Trust who are not parties to this Agreement or “interested
persons” (as defined in the 0000 Xxx) of any such party (the “Independent
Trustees”), by vote cast in person at a meeting called for the purpose of
voting on such approval; and provided, however, that (a) the Trust
may at
any time, without payment of any penalty, terminate this Agreement
upon
sixty days’ written notice to the Adviser, either by majority vote of the
Trustees of the Trust or by the vote of a majority of the outstanding
voting securities of the Trust (as defined in the 1940 Act and the
rules
thereunder); (b) this Agreement shall immediately terminate in the
event
of its assignment (to the extent required by the 1940 Act and the
rules
thereunder) unless such automatic termination shall be prevented
by an
exemptive order of the Securities and Exchange Commission; and
(c) the Adviser may terminate this Agreement without payment of
penalty on sixty days’ written notice to the
Trust.
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13. |
Any
notice under this Agreement shall be given in writing and shall be
deemed
to have been duly given when delivered by hand or facsimile or five
days
after mailed by certified mail, post-paid, by return receipt requested
to
the other party at the principal office of such
party.
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14. |
This
Agreement may be amended only by the written agreement of the parties.
Any
amendment shall be required to be approved by the Trustees of the
Trust
and by a majority of the Independent Trustees in accordance with
the
provisions of Section 15(c) of the 1940 Act and the rules thereunder.
Any
amendment shall also be required to be approved by a vote of shareholders
of the Trust as, and to the extent, required by the 1940 Act and
the rules
thereunder, except that an amendment may be effected without the
vote of
shareholders: to reduce the fees payable hereunder; to supply any
omission; to cure, correct or supplement any ambiguous, defective
or
inconsistent provision hereof; or if necessary, to conform this Agreement
to the requirements of applicable laws or regulations, but neither
the
Trust nor the Adviser shall be liable for failing to do so. This
Agreement
may be amended to make it applicable to any investment portfolio
of the
Trust which is hereafter formed and such amendment need not be approved
by
the vote of the holders of shares of the Fund or of any other
portfolio.
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15. |
This
Agreement shall be construed in accordance with the laws of the state
of
New York and the applicable provisions of the 1940 Act. To the extent
the
applicable law of the State of New York, or any of the provisions
herein,
conflict with the applicable provisions of the 1940 Act, the latter
shall
control.
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16. |
The
Trust represents that this Agreement has been duly approved by the
Trustees, including a majority of the Independent Trustees, and
shareholders of the Trust in accordance with the requirements of
the 1940
Act and the rules thereunder.
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17. |
The
Declaration of Trust states and notice is hereby given that this
Agreement
is not executed on behalf of the Trustees of the Trust as individuals,
and
the obligations of the Trust under this Agreement are not binding
upon any
of the Trustees, officers or shareholders of the Trust individually,
but
are binding only upon the assets
and property of the Trust.
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IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
on the day and year first above written.
XXXXXX SERIES TRUST | |
Attest: | By: /s/ Xxxxx X. Xxxxxxxxx |
Xxxxx X. Xxxxxxxxx | |
/s/ Xxxxx X. Xxxxxx | |
Xxxxx X. Xxxxxx | |
XXXXXX CAPITAL MANAGEMENT, L.L.C | |
Attest: | By: /s/ Xxxxx X. Xxxxxxxxx |
Xxxxx X. Xxxxxxxxx | |
/s/ Xxxxx X. Xxxxxx | |
Xxxxx X. Xxxxxx |
SCHEDULE
A
In
consideration of the services provided by the Adviser, the Trust shall pay
to
the Adviser compensation computed daily at the annual rate of 1.25% of the
Fund’s net assets (the “Basic Fee”), which rate shall be adjusted monthly, as
described below (the “Monthly Performance Adjustment”), depending on the
investment performance of the Fund relative to the investment performance of
the
S&P 500 Index. (The Basic Fee as so adjusted is the “Total Advisory Fee.”)
The Total Advisory Fee shall be paid monthly.
The
Total
Advisory Fee applicable each calendar month shall be determined by adding:
(1) 1/12th of the Basic Fee multiplied by the average daily net assets of
the Fund during such month; plus (2) 1/12th of the Monthly Performance
Adjustment (as specified below) multiplied by the average daily net assets
of
the Fund during the 12 month period ending on the last day of such month. The
Monthly Performance Adjustment used in computing the Total Advisory Fee each
month shall be a percentage rate determined by: (a) subtracting from the
cumulative percentage performance of the Fund (net of all expenses, including
the fees payable pursuant to this Agreement) during the 12 month period ending
on the last day of such month, the percentage change in the S&P 500 Index
over the same period (including the value of dividends paid during the
measurement period on stocks included in the Index); and (b) multiplying the
result by 0.15; provided, however, that the maximum Monthly Performance
Adjustment shall not exceed +.75% or -.75%.
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