Ex-93.23.d.iii
MANAGEMENT AGREEMENT
TO: XXXXXXX INVESTMENT COUNSEL, INC.
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Dear Sirs:
Xxxxxxx Mutual Funds Trust (hereinafter referred to as the "Trust")
herewith confirms our agreement with you.
The Trust has been organized to engage in the business of an investment
company. The Trust currently offers several series of shares to investors, one
of which is the Xxxxxxx Realty Fund (the "Fund").
You have been selected to act as the sole investment adviser to the
Fund and to provide certain other services to the Fund, as more fully set forth
below, and you are willing to act as such investment adviser and to perform such
services under the terms and conditions hereinafter set forth. Accordingly, the
Trust agrees with you, as follows, upon the date of the execution of this
Agreement.
1. ADVISORY SERVICES
You will regularly provide the Fund with such investment
advice as you, in your discretion, deem advisable, and will furnish a continuous
investment program for the Fund consistent with the respective series'
investment objective and policies. You will determine the securities to be
purchased for the Fund, the portfolio securities to be held or sold by the Fund
and the portion of the Fund's assets to be held uninvested, subject always to
the series' investment objective, policies and restrictions, as each of the same
shall be from time to time in effect, and subject further to such policies and
instructions as the Board may from time to time establish. You will advise and
assist the officers of the Trust in taking such steps as are necessary or
appropriate to carry out the decisions of the Board and the appropriate
committees of the Board regarding the conduct of the business of the Fund.
2. ALLOCATION OF CHARGES AND EXPENSES
You will pay all operating expenses of the Fund, including the
compensation and expenses of any trustees, officers and employees of the Trust
and of any other persons rendering any services to the Fund; clerical and
shareholder service staff salaries; office space and other office expenses; fees
and expenses incurred by the Fund in connection with membership in investment
company organizations; legal, auditing and accounting expenses;
non-organizational expenses of registering shares under federal and state
securities laws; insurance expenses; fees and expenses of the custodian,
transfer agent, dividend disbursing agent, shareholder service agent, plan
agent, administrator, accounting and pricing services agent and underwriter of
the Fund; expenses, including clerical expenses, of issue, sale, redemption or
repurchase of shares of the Fund; the cost of preparing and distributing reports
and notices to shareholders, the cost of printing or preparing prospectuses and
statements of additional information for delivery to the Fund's current and
prospective shareholders; the cost of printing or preparing stock certificates
or any other documents, statements or reports to shareholders; expenses of
shareholders' meetings and proxy solicitations; advertising, promotion and other
expenses incurred directly or indirectly in connection with the sale or
distribution of the Fund's shares; and all other operating expenses not
specifically assumed by the Fund.
The Fund will pay all brokerage fees and commissions, taxes,
interest, and its share of such extraordinary or non-recurring expenses as may
arise, including litigation to which the Trust may be a party and
indemnification of the Trust's trustees and officers with respect thereto. You
may obtain reimbursement from the Fund, at such time or times as you may
determine in your sole discretion, for any of the expenses advanced by you,
which the Fund is obligated to pay, and such reimbursement shall not be
considered to be part of compensation pursuant to this Agreement.
11
3. COMPENSATION OF THE ADVISER
For all of the services to be rendered and payments to be made
as provided in this Agreement, as of the last business day of each month, the
Xxxxxxx Realty Fund will pay you a fee at an annual rate of 1.00% of the average
value of its daily net assets.
The average value of the daily net assets of the Fund shall be
determined pursuant to the applicable provisions of the Declaration of Trust of
the Trust or a resolution of the Board, if required. If, pursuant to such
provisions, the determination of net asset value of the Fund is suspended for
any particular business day, then for the purposes of this paragraph, the value
of the net assets of the Fund as last determined shall be deemed to be the value
of the net assets as of the close of the business day, or as of such other time
as the value of the Fund's net assets may lawfully be determined, on that day.
If the determination of the net asset value of the Fund has been suspended for a
period including such month, your compensation payable at the end of such month
shall be computed on the basis of the value of the net assets of the series as
last determined (whether during or prior to such month).
4. EXECUTION OF PURCHASE AND SALE ORDERS
In connection with purchases or sales of portfolio securities
for the account of the Fund, it is understood that you will arrange for the
placing of all orders for the purchase and sale of portfolio securities for the
account with brokers or dealers selected by you, subject to review of this
selection by the Board from time to time. You will be responsible for the
negotiation and the allocation of principal business and portfolio brokerage. In
the selection of such brokers or dealers and the placing of such orders, you are
directed at all times to seek for the Fund the best qualitative execution,
taking into account such factors as price (including the applicable brokerage
commission or dealer spread), the execution capability, financial responsibility
and responsiveness of the broker or dealer and the brokerage and research
services provided by the broker or dealer.
You should generally seek favorable prices and commission
rates that are reasonable in relation to the benefits received. In seeking best
qualitative execution, you are authorized to select brokers or dealers who also
provide brokerage and research services (as those terms are defined in Section
28(e) of the Securities Exchange Act of 1934) to the Fund and/or the other
accounts over which you exercise investment discretion. You are authorized to
pay a broker or dealer who provides such brokerage and research services a
commission for executing a Fund portfolio transaction which is in excess of the
amount of commission another broker or dealer would have charged for effecting
that transaction if you determine in good faith that the amount of the
commission is reasonable in relation to the value of the brokerage and research
services provided by the executing broker or dealer. The determination may be
viewed in terms of either a particular transaction or your overall
responsibilities with respect to the Fund and to accounts over which you
exercise investment discretion. The Trust and you understand and acknowledge
that, although the information may be useful to the Fund and you, it is not
possible to place a dollar value on such information. The Board shall
periodically review the commissions paid by the Fund to determine if the
commissions paid over representative periods of time were reasonable in relation
to the benefits to the Fund.
Consistent with the Rules of Fair Practice of the National
Association of Securities Dealers, Inc., and subject to seeking best qualitative
execution as described above, you may give consideration to sales of shares of
the Trust as a factor in the selection of brokers and dealers to execute Trust
portfolio transactions.
Subject to the provisions of the Investment Company Act of
1940, as amended, and other applicable law, you or any of your affiliates may
retain compensation in connection with effecting the Fund portfolio
transactions, including transactions effected through others. If any occasion
should arise in which you give any advice to clients of yours concerning the
shares of the Fund, you will act solely as investment counsel for such client
and not in any way on behalf of the Fund. Your services to the Fund pursuant to
this Agreement are not to be deemed to be exclusive and it is understood that
you may render investment advice, management and other services to others,
including other registered investment companies.
5. LIMITATION OF LIABILITY OF ADVISER
You may rely on information reasonably believed by you to be
accurate and reliable. Except as may otherwise be required by the Investment
Company Act of 1940 or the rules thereunder, neither you nor your
12
shareholders, officers, directors, employees, agents, control persons or
affiliates of any thereof shall be subject to any liability for, or any damages,
expenses or losses incurred by the Trust in connection with, any error of
judgment, mistake of law, any act or omission connected with or arising out of
any services rendered under or payments made pursuant to this Agreement or any
other matter to which this Agreement relates, except by reason of willful
misfeasance, bad faith or gross negligence on the part of any such persons in
the performance of your duties under this Agreement or by reason of reckless
disregard by any of such persons of your obligations and duties under this
Agreement.
Any person, even though also a director, officer, employee,
shareholder or agent of you, who may be or become an, officer, director,
trustee, employee or agent of the Trust, shall be deemed, when rendering
services to the Trust or acting on any business of the Trust (other than
services or business in connection with your duties hereunder), to be rendering
such services to or acting solely for the Trust and not as a director, officer,
employee, shareholder or agent of you, or one under your control or direction,
even though paid by you.
6. DURATION AND TERMINATION OF THIS AGREEMENT
This Agreement shall take effect on the date of its
execution and shall remain in force for a period of two (2) years from the date
of its execution and from year to year thereafter, subject to annual approval by
(i) the Board or (ii) a vote of a majority (as defined in the Investment Company
Act of 1940) of the outstanding voting securities of the Fund, provided that in
either event, continuance is also approved by a majority of the trustees who are
not "interested persons" as defined in the Investment Company Act of 1940 of you
or the Trust, by vote cast in person at a meeting called for the purpose of
voting such approval.
If the shareholders of the Fund fail to approve the
Agreement in the manner set forth above, upon request of the Board, you will
continue to serve or act in such capacity for the Funds for the period of time
pending required approval of the Agreement, of a new agreement with you or a
different adviser or other definitive action; provided that the compensation to
be paid by the Fund to you for your services to and payments on behalf of the
Fund will be equal to the lesser of your actual costs incurred in furnishing
such services and payments or the amount you would have received under this
Agreement for furnishing such services and payments.
This Agreement may, on sixty (60) days written notice, be
terminated with respect to the Fund at any time without the payment of any
penalty by the Board, by a vote of a majority of the outstanding voting
securities of the Fund or by you. This Agreement shall automatically terminate
in the event of its assignment.
7. USE OF NAME
The Trust and you acknowledge that all rights to the name
"Xxxxxxx" belong to you and that the Fund is being granted a limited license to
use such words in the name of the Fund. In the event you cease to be the
investment adviser to the Fund, the Fund's right to the use of the name
"Xxxxxxx" shall automatically cease on the thirtieth day following the
termination of this Agreement. You may also withdraw the right to the name
during the term of this Agreement upon thirty (30) days' written notice by you
to the Fund. Nothing contained herein shall impair or diminish in any respect,
your right to use the name "Xxxxxxx" in the name of or in connection with any
other business enterprises with which you are or may become associated. There is
no charge to the Fund for the right to use this name.
13
8. AMENDMENT OF THIS AGREEMENT
No provision of this Agreement may be changed, waived,
discharged or terminated orally, and no amendment of this Agreement shall be
effective until approved: a) by the Board, including a majority of the Trustees
who are not interested persons of you or of the Trust, cast in person at a
meeting called for the purpose of voting on such approval; and b) if and only if
required by the Investment Company Act of 1940, by the vote of the holders of a
majority of the outstanding voting securities of the Fund to which the amendment
relates.
9. LIMITATION OF LIABILITY TO TRUST PROPERTY
The term "Xxxxxxx Mutual Funds Trust" means and refers to the
Trustees from time to time serving under the Trust's Agreement and Declaration
of Trust as the same may subsequently thereto have been, or subsequently hereto
be, amended. It is expressly agreed that the obligations of the Trust hereunder
shall not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust, personally, but bind only the trust property
of the Trust, as provided in the Agreement and Declaration of Trust. The
execution and delivery of this Agreement have been authorized by the trustees
and shareholders of the Fund and signed by officers of the Trust, acting as
such, and neither such authorization by such trustees and shareholders nor such
execution and delivery by such officers shall be deemed to have been made by any
of them individually or to impose any liability on any of them personally, but
shall bind only the trust property of the Trust as provided in its Agreement and
Declaration of Trust. A copy of the Agreement and Declaration of Trust is on
file with the Secretary of State of Ohio.
10. SEVERABILITY
In the event any provision of this Agreement is determined to
be void or unenforceable, such determination shall not affect the remainder of
this Agreement, which shall continue to be in force.
11. QUESTIONS OF INTERPRETATION
a. This Agreement shall be governed by the laws of the State
of Ohio.
b. Any question of interpretation of any term or provision of
this Agreement having a counterpart in or otherwise derived from a term or
provision of the Investment Company Act of 1940, as amended (the "Act") shall be
resolved by reference to such term or provision of the Act and to interpretation
thereof, if any, by the United States courts or in the absence of any
controlling decision of any such court, by rules, regulations or orders of the
Securities and Exchange Commission issued pursuant said Act. In addition, where
the effect of a requirement of the Act, reflected in any provision of this
Agreement is revised by rule, regulation or order of the Securities and Exchange
Commission, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
12. NOTICES
Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to the other party at such
address as such other party may designate for the receipt of such notice. Until
further notice to the other party, it is agreed that the address of the Trust
and the address of the Adviser for this purpose shall be 0000 Xxxx Xxxx Xxxx,
Xxxxxxxxxx, Xxxx 00000.
13. COUNTERPARTS
This Agreement may be in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
14. BINDING EFFECT
Each of the undersigned expressly warrants and represents that
he has the full power and authority to sign this Agreement on behalf of the
party indicated, and that his signature will operate to bind the party indicated
to the foregoing terms.
14
15. CAPTIONS
The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
If you are in agreement with the foregoing, please sign the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Trust, whereupon this letter shall become a binding contract
upon the date thereof.
Yours very truly,
XXXXXXX MUTUAL FUNDS TRUST
Dated as of December 18, 2001 By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, President
MANAGEMENT AGREEMENT
ACCEPTANCE
The foregoing Management Agreement is hereby accepted.
XXXXXXX INVESTMENT COUNSEL, INC.
Dated as of December 18, 2001 By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, President
15
