EXHIBIT (D)(2)
THIRD AVENUE SMALL-CAP VALUE FUND
INVESTMENT ADVISORY AGREEMENT
Investment Advisory Agreement dated as of August 8, 2006, between
Third Avenue Trust (the "Trust"), a Delaware business trust, on behalf of its
series, Third Avenue Small-Cap Value Fund (the "Fund"), and Third Avenue
Management LLC (the "Adviser"), a Delaware limited liability company.
In consideration of the mutual promises and agreements herein contained
and other good and valuable consideration, the receipt of which is hereby
acknowledged, it is agreed by and between the parties hereto as follows:
1. IN GENERAL
The Adviser agrees, all as more fully set forth herein, to act as
investment adviser to the Fund with respect to the investment of the assets of
the Fund and to supervise and arrange the purchase and sale of assets held in
the investment portfolio of the Trust. The Adviser may delegate any or all of
its responsibilities to one or more sub-advisers or administrators, subject to
the approval of the Board of Trustees of the Trust. Such delegation shall not
relieve the Adviser of its duties and responsibilities hereunder.
2. DUTIES AND OBLIGATIONS OF THE ADVISER WITH RESPECT TO INVESTMENTS
OF ASSETS OF THE FUND
(a) Subject to the succeeding provisions of this paragraph and
subject to the direction and control of the Trust's Board of Trustees, the
Adviser shall (i) act as investment adviser for and supervise and manage the
investment and reinvestment of the Fund's assets and in connection therewith
have complete discretion in purchasing and selling securities and other assets
for the Fund and in voting, exercising consents and exercising all other rights
appertaining to such securities and other assets on behalf of the Fund; and (ii)
arrange for the purchase and sale of securities and other assets held in the
investment portfolio of the Fund. Nothing contained herein shall be construed to
restrict the Fund's right to hire its own employees or to contract separately
with the Adviser or others to provide administrative services to the Fund,
including but not limited to, the calculation of net asset value of the Fund's
shares.
(b) In the performance of its duties under this Agreement, the
Adviser shall at all times use all reasonable efforts to conform to, and act in
accordance with, any requirements imposed by (i) the provisions of the
Investment Company Act of 1940, as amended (the "Act"), and of any rules or
regulations in force thereunder; (ii) any other applicable provisions of law;
(iii) the provisions of the Trust Instrument and By-Laws of the Trust, as such
documents are amended from time to time; (iv) the investment objective, policies
and restrictions applicable to the Fund as set forth in the Fund's Prospectus
(including its Statement of Additional Information) and (v) any policies and
determinations of the Board of Trustees of the Trust.
(c) The Adviser will seek to provide qualified personnel to fulfill
its duties hereunder and will bear all costs and expenses (including any
overhead and personnel costs) incurred in connection with its duties hereunder
and shall bear the costs of any salaries or trustees fees of any officers or
trustees of the Trust who are affiliated persons (as defined in the Act) of the
Adviser, provided however, that where the Chief
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Compliance Officer of the Trust is also an officer of the Adviser, the Trust
shall pay a portion of that person's salary as agreed by the Board on an annual
basis. Subject to the foregoing, the Fund shall be responsible for the payment
of all the Fund's other expenses, including (i) payment of the fees payable to
the Adviser under paragraph 4 hereof; (ii) organizational expenses; (iii)
brokerage fees and commissions; (iv) taxes; (v) interest charges on borrowing;
(vi) the cost of liability insurance or fidelity bond coverage for the Fund's
officers and employees, and trustees' and officers' errors and omissions
insurance coverage; (vii) legal, auditing, and accounting fees and expenses;
(viii) charges of the Fund's administrator, custodian, transfer agent and other
service providers; (ix) the Fund's pro rata portion of dues, fees and charges of
any trade association of which the Fund is a member; (x) the expenses of
printing, preparing and mailing proxies, stock certificates and reports,
including the Fund's prospectus and statements of additional information, and
notices to shareholders; (xi) filing fees for the registration or qualification
of the Fund and its shares under federal or state securities laws; (xii) the
fees and expenses involved in registering and maintaining registration of the
Fund's shares with the Securities and Exchange Commission; (xiii) the expenses
of holding shareholder meetings; (xiv) the compensation, including fees, of any
of the Trust's trustees, officers or employees who are not affiliated persons of
the Adviser; (xv) all expenses of computing the Fund's net asset value per
share, including any equipment or services obtained solely for the purpose of
pricing shares or valuing the Fund's investment portfolio; (xvi) expenses of
personnel performing shareholder servicing functions and all other distribution
expenses payable by the Fund; (xvii) expenses of redemption of shares and
(xviii) litigation and other extraordinary or non-recurring expenses and other
expenses properly payable by the Fund.
(d) The Adviser shall give the Fund the benefit of its best judgment
and effort in rendering services hereunder, but neither the Adviser nor any of
its officers, directors, employees, agents or controlling persons shall be
liable for any act or omission or for any loss sustained by the Fund in
connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of its reckless disregard of its
obligations and duties under this agreement, provided, however, that the
foregoing shall not constitute a waiver of any rights which the Fund may have
which may not be waived under applicable law.
(e) Nothing in this Agreement shall prevent the Adviser or any
director, officer, employee or other affiliate thereof from acting as investment
adviser for any other person, firm or corporation, or from engaging in any other
lawful activity, and shall not in any way limit or restrict the Adviser or any
of its directors, employees or agents from buying, selling or trading any
securities for its or their own accounts or for the accounts of others for whom
it or they may be acting.
3. PORTFOLIO TRANSACTIONS
In the course of the Adviser's execution of portfolio transactions
for the Fund, it is agreed that the Adviser shall employ securities brokers and
dealers which, in its judgment, will be able to satisfy the policy of the Fund
to seek the best execution of its portfolio transactions at reasonable expenses.
For purposes of this Agreement, "best execution" shall mean prompt, efficient
and reliable execution at the most favorable price obtainable. Under such
conditions as may be specified by the Trust's Board of Trustees in the interest
of its shareholders and to ensure compliance with applicable law and
regulations, the Adviser may (a) place orders for the purchase or sale of the
Fund's portfolio securities with its affiliates, X.X. Xxxxxxx LLC and Private
Debt LLC; and (b) pay commissions to brokers other than its affiliates which are
higher than might be charged by another qualified broker or obtain brokerage
and/or research services considered by the Adviser to be useful or desirable in
the performance of its duties
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hereunder and for the investment management of other advisory accounts over
which it or its affiliates exercise investment discretion.
4. COMPENSATION OF THE ADVISER
(a) The Fund agrees to pay to the Adviser out of the Fund's assets
and the Adviser agrees to accept as full compensation for all services rendered
by or through the Adviser a fee computed daily and payable monthly in arrears an
amount equal to 1/12 of 0.90% of the Fund's daily average net assets for such
month. For any period less than a month during which this Agreement is in
effect, the fee shall be prorated according to the proportion which such period
bears to a full month of 28, 29, 30 or 31 days, as the case may be.
(b) For purposes of this Agreement, the net assets of the Fund shall
be calculated pursuant to the procedures adopted by resolutions of the Trustees
of the Trust for calculating the net asset value of the Fund's shares.
5. INDEMNITY
(a) The Fund hereby agrees to indemnify the Adviser and each of the
Adviser's directors, officers, employees, and agents (including any individual
who serves at the Adviser's request as director, officer, partner, trustee or
the like of another corporation) and controlling persons (each such person being
an "indemnitee") against any liabilities and expenses, including amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and counsel
fees (all as provided in accordance with applicable corporate law) reasonably
incurred by such indemnitee in connection with the defense or disposition of any
action, suit or other proceeding, whether civil or criminal, before any court or
administrative or investigative body which he may be or may have been involved
as a party or otherwise or with which he may have been threatened, while acting
in any capacity set forth above in this paragraph or thereafter by reason of his
having acted in any such capacity, except with respect to any matter as to which
he shall have been adjudicated not to have acted in good faith in the reasonable
belief that his action was in the best interest of the Fund and furthermore, in
the case of any criminal proceeding, so long as he had no reasonable cause to
believe that the conduct was unlawful, provided, however, that (1) no indemnitee
shall be indemnified hereunder against any liability to the Fund or its
shareholders or any expense of such indemnitee arising by reason of (i) willful
misfeasance, (ii) bad faith, (iii) gross negligence (iv) reckless disregard of
the duties involved in the conduct of his position (the conduct referred to in
such clauses (i) through (iv) being sometimes referred to herein as "disabling
conduct"), (2) as to any matter disposed of by settlement or a compromise
payment by such indemnitee, pursuant to a consent decree or otherwise, no
indemnification either for said payment or for any other expenses shall be
provided unless there has been a determination that such settlement or
compromise is in the best interests of the Fund and that such indemnitee appears
to have acted in good faith in the reasonable belief that his action was in the
best interest of the Fund and did not involve disabling conduct by such
indemnitee and (3) with respect to any action, suit or other proceeding
voluntarily prosecuted by any indemnitee as plaintiff, indemnification shall be
mandatory only if the prosecution of such action, suit or other proceeding by
such indemnitee was authorized by a majority of the full Board of the Trust.
Notwithstanding the foregoing, the Fund shall not be obligated to provide such
indemnification (i) to the extent such provision would waive any right which the
Fund cannot lawfully waive or (ii) with respect to any obligation, liability or
expense of any other series of shares of the Trust.
(b) The Fund shall make advance payments in connection with the
expenses of defending any action with respect to which indemnification might be
sought hereunder if the Fund receives a written affirmation of the indemnitee's
good faith belief that the
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standard of conduct necessary for indemnification has been met and a written
undertaking to reimburse the Fund unless it is subsequently determined that he
is entitled to such indemnification and if the Trustees of the Trust determine
that the facts then known to them would not preclude indemnification. In
addition, at least one of the following conditions must be met: (A) the
indemnitee shall provide a security for his undertaking, (B) the Fund shall be
insured against losses arising by reason of any lawful advances, or (C) a
majority of a quorum of trustees of the Trust who are neither "interested
persons" of the Trust (as defined in Section 2(a)(19) of the Act) nor parties to
the proceeding ("Disinterested Non-Party Trustees") or an independent legal
counsel in a written opinion, shall determine based on a review of readily
available facts (as opposed to a full trial-type inquiry), that there is reason
to believe that the indemnitee ultimately will be found entitled to
indemnification.
(c) All determinations with respect to indemnification hereunder
shall be made (1) by a final decision on the merits by a court or other body
before whom the proceeding was brought that such indemnitee is not liable by
reason of disabling conduct or, (2) in the absence of such a decision, by (i) a
majority vote of a quorum of the Disinterested Non-Party Trustees of the Trust,
or (ii) if such a quorum is not obtainable or even, if obtainable, if a majority
vote of such quorum so directs, independent legal counsel in a written opinion.
The rights accruing to any indemnitee under these provisions shall
not exclude any other right to which he may be lawfully entitled.
6. DURATION AND TERMINATION
This Agreement shall become effective upon the date hereof and shall
continue in effect for a period of one year and thereafter from year to year,
but only so long as such continuation is specifically approved at least annually
in accordance with the requirements of the Act.
This Agreement may be terminated by the Adviser at any time without
penalty upon giving the Fund sixty days written notice (which may be waived by
the Fund) and may be terminated by the Fund at any time without penalty upon
giving the Adviser sixty days notice (which notice may be waived by the
Adviser), provided that such termination by the Fund shall be directed or
approved by the vote of a majority of the Trustees of the Trust in office at the
time or by the vote of the holders of a "majority of the voting securities" (as
defined in the Act) of the Fund at the time outstanding and entitled to vote.
This Agreement shall terminate automatically in the event of its assignment (as
"assignment" is defined in the Act and the rules thereunder).
It is understood and hereby agreed that the name "Third Avenue" and
any associated logo and mask are the property of the Adviser for copyright and
other purposes. The Fund further agrees that the words "Third Avenue" may freely
be used by the Adviser for other investment companies, entities or products. The
Fund further agrees that, in the event that the Adviser shall cease to act as
investment adviser to the Fund, the Fund shall promptly take all necessary and
appropriate action to change its name to names which do not include the words
"Third Avenue"; provided, however, that the Fund may continue to use the words
"Third Avenue" if the Adviser consents in writing to such use.
7. NOTICES
Any notice under this Agreement shall be in writing to the other
party at such address as the other party may designate from time to time for the
receipt of such notice and shall be deemed to be received on the earlier of the
date actually received or on the fourth day after the postmark if such notice is
mailed first class postage prepaid.
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8. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the
State of New York for contracts to be performed entirely therein and in
accordance with the applicable provisions of the Act.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing
instrument to be executed by their duly authorized officers, all as of the day
and the year first above written.
THIRD AVENUE TRUST, FOR THE
THIRD AVENUE SMALL-CAP VALUE FUND SERIES
By:_____________________________________
Name: Xxxxx X. Xxxxx
Title: President
THIRD AVENUE MANAGEMENT LLC
By:_____________________________________
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
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