Exhibit (d)(16)
PORTFOLIO MANAGEMENT AGREEMENT
The High Yield Bond Portfolio
AGREEMENT made this 1st day of July, 2002, between X.X. Xxxx Asset Management
CO., L.L.C., a limited liability company organized under the laws of the state
of Delaware ("Portfolio Manager"), and THE XXXXXX XXXXXXXXX TRUST, a Delaware
business trust ("Trust").
WHEREAS, the Trust is registered as an open-end, diversified, management series
investment company under the Investment Company Act of 1940, as amended
("Investment Company Act") which currently offers eight series of beneficial
interests ("shares") representing interests in separate investment portfolios,
and may offer additional portfolios in the future; and
WHEREAS, the Trust desires to retain the Portfolio Manager to provide a
continuous program of investment management for a portion of The High Yield Bond
Portfolio of the Trust ("Portfolio") and Portfolio Manager is willing, in
accordance with the terms and conditions hereof, to provide such services to the
Trust;
NOW THEREFORE, in consideration of the promises and covenants set forth herein
and intending to be legally bound hereby, it is agreed between the parties as
follows:
1. Appointment of Portfolio Manager. The Trust hereby retains Portfolio Manager
to provide the investment services set forth herein and Portfolio Manager agrees
to accept such appointment. In carrying out its responsibilities under this
Agreement, the Portfolio Manager shall at all times act in accordance with the
investment objectives, policies and restrictions applicable to the Portfolio as
set forth in the then current Registration Statement of the Trust, applicable
provisions of the Investment Company Act and the rules and regulations
promulgated under that Act and other applicable federal securities laws. A copy
of the current Registration Statement is attached. The Trust will provide the
Portfolio Manager with updated Registration Statements as they become available.
2. Duties of Portfolio Manager. (a) Portfolio Manager shall provide a
continuous program of investment management for that portion of the assets of
the Portfolio ("Account") that may, from time to time, be allocated to it by the
Trust's Board of Trustees, in writing, by an authorized officer of the Trust. It
is understood that the Account may consist of all, a portion of or none of the
assets of the Portfolio, and that the Board of Trustees has the right to
allocate and reallocate such assets to the Account at any time, and from time to
time, upon such notice to the Portfolio Manager as may be reasonably necessary,
in the view of the Trust, to ensure orderly management of the Account or the
Portfolio.
(b) Subject to the general supervision of the Trust's Board of Trustees,
Portfolio Manager shall have sole investment discretion with respect to the
Account, including investment research, selection of the securities to be
purchased and sold and the portion of the Account, if any, that shall be held
uninvested, the selection of brokers and dealers through which securities
transactions in the Account shall be executed, and to take such other action
with respect to the Account as Portfolio
Manager, in its complete discretion without consultation or confirmation, may
determine to be appropriate (including, without limitation, the granting or
withholding consent with respect to any securities, or making any contract,
asserting any claim, commencing, settling or discontinuing any action on behalf
of the Account, and generally to take or refrain from any other action).
Specifically, and without limiting the generality of the foregoing, Portfolio
Manager agrees that it will:
(i) promptly advise the Portfolio's designated custodian bank and
administrator or accounting agent of each purchase and sale, as the case may be,
made on behalf of the Account, specifying the name and quantity of the security
purchased or sold, the unit and aggregate purchase or sale price, commission
paid, the market on which the transaction was effected, the trade date, the
settlement date, the identity of the effecting broker or dealer and/or such
other information, and in such manner, as may from time to time be reasonably
requested by the Trust;
(ii) maintain all applicable books and records with respect to the
securities transactions of the Account. Specifically, Portfolio Manager agrees
to maintain with respect to the Account those records required to be maintained
under Rule 31a-1(b)(1), (b)(5) and (b)(6) under the Investment Company Act with
respect to transactions in the Account including, without limitation, records
which reflect securities purchased or sold in the Account, showing for each such
transaction (if applicable), the name and quantity of securities, the unit and
aggregate purchase or sale price, commission paid, the market on which the
transaction was effected, the trade date, the settlement date, and the identity
of the effecting broker or dealer. Portfolio Manager will preserve such records
in the manner and for the periods prescribed by Rule 31a-2 under the Investment
Company Act. Portfolio Manager acknowledges and agrees that all records it
maintains for the Trust are the property of the Trust and Portfolio Manager will
surrender promptly to the Trust any such records upon the Trust's request;
(iii) provide, in a timely manner, such information as may be
reasonably requested by the Trust or its designated agents in connection with,
among other things, the daily computation of the Portfolio's net asset value and
net income, preparation of proxy statements or amendments to the Trust's
registration statement and monitoring investments made in the Account to ensure
compliance with the various limitations on investments applicable to the
Portfolio and to ensure that the Portfolio will continue to qualify for the
special tax treatment accorded to regulated investment companies under
Subchapter M of the Internal Revenue Code of 1986, as amended; and
(iv) render regular reports to the Trust concerning the performance of
Portfolio Manager of its responsibilities under this Agreement. In particular,
Portfolio Manager agrees that it will, at the reasonable request of the Board of
Trustees, attend meetings of the Board or its validly constituted committees and
will, in addition, make its officers and employees available to meet with the
officers and employees of the Trust at least quarterly and at other times upon
reasonable notice, to review the investments and investment program of the
Account.
3. Portfolio Transaction and Brokerage. In placing orders for portfolio
securities with brokers and dealers, Portfolio Manager shall use its best
efforts to execute securities transactions on behalf of the Account in such a
manner that the total cost or proceeds in each transaction is the most favorable
under the circumstances. Portfolio Manager may, however, in its discretion,
direct orders to brokers that provide to Portfolio Manager research, analysis,
advice and similar services, and
Portfolio Manager may cause the Account to pay to those brokers a higher
commission than may be charged by other brokers for similar transactions,
provided that Portfolio Manager determines in good faith that such commission is
reasonable in terms either of the particular transaction or of the overall
responsibility of the Portfolio Manager to the Account and any other accounts
with respect to which Portfolio Manager exercises investment discretion, and
provided further that the extent and continuation of any such practice is
subject to review by the Trust's Board of Trustees. Portfolio Manager shall not
execute any portfolio transactions for the Trust with a broker or dealer which
is an "affiliated person" of the Trust or Portfolio Manager, including any other
investment advisory organization that may, from time to time, act as a portfolio
manager for the Portfolio or any of the Trust's other Portfolios, without prior
written approval of the Trust. The Trust shall provide a list of such affiliated
brokers and dealers to Portfolio Manager and will promptly advise Portfolio
Manager of any changes in such list.
4. Expenses and Compensation. Except for expenses specifically assumed or
agreed to be paid by the Portfolio Manager under this Agreement, the Portfolio
Manager shall not be liable for any expenses of the Trust including, without
limitation, (i) interest and taxes, (ii) brokerage commissions and other costs
in connection with the purchase and sale of securities or other investment
instruments with respect to the Portfolio, and (iii) custodian fees and
expenses. For its services under this Agreement, Portfolio Manager shall be
entitled to receive a fee, which fee shall be payable monthly at the annual rate
of 0.50% of the average daily net assets of the Account.
5. Limitation of Liability and Indemnification. (a) Portfolio Manager shall not
be liable for any error of judgment or mistake of law or for any loss suffered
by the Trust in connection with the matters to which this Agreement relates
including, without limitation, losses that may be sustained in connection with
the purchase, holding, redemption or sale of any security or other investment by
the Trust except a loss resulting from willful misfeasance, bad faith or gross
negligence on the part of Portfolio Manager in the performance of its duties or
from reckless disregard by it of its duties under this Agreement.
(b) Notwithstanding the foregoing, Portfolio Manager expressly agrees that the
Trust may rely upon information provided, in writing, by Portfolio Manager to
the Trust (including, without limitation, information contained in Portfolio
Manager's then current Form ADV) in accordance with Section 9 of the Agreement
or otherwise, in preparing the Trust's registration statement and amendments
thereto and certain periodic reports relating to the Trust and its Portfolios
that are required to be furnished to shareholders of the Trust and/or filed with
the Securities and Exchange Commission ("SEC Filings"), provided that a copy of
any such filing is provided to Portfolio Manager (i) at least 10 business days
prior to the date on which it will become effective, in the case of a
registration statement; (ii) at least 10 business days prior to the date upon
which it is filed with the SEC in the case of the Trust's semi-annual report on
Form N-SAR or any shareholder report or proxy statement.
(c) Portfolio Manager agrees to indemnify and hold harmless the Trust and each
of its Trustees, officers and employees from any claims, liabilities and
expenses, including reasonable attorneys' fees, (collectively, "Losses") to the
extent that Losses are incurred as a result of statements contained in an SEC
Filing ("Disputed Statements") that are misleading either because they are (i)
untrue statements of material fact; or (ii) omitted to state any material fact
necessary in order to
make the statements made, in the light of the circumstances under which they are
made, not misleading; provided that, in each case, such Disputed Statements
derived from written information the Portfolio Manager provides the Trust for
inclusion in an SEC Filing and the Portfolio Manager has had the opportunity to
review the SEC Filing as provided in clause (b) above. For purposes of the
indemnification obligation set forth in this Section 5(c), a Disputed Statement
will be deemed misleading if so declared by a decision of a court or
administrative law judge or in an order of settlement issued by any court or
administrative body (and not subsequently overturned on appeal).
(d) Portfolio Manager further agrees to indemnify and hold harmless the Trust
and each of its Trustees, from any Losses to the extent that such Losses are
incurred as a result of Disputed Statements that are alleged (i) to be untrue
statements of material fact; or (ii) to have omitted to state any material fact
necessary in order to make the statements made, in the light of the
circumstances under which they are made, provided that the indemnification
obligation set forth in this Section 5(d) is expressly limited to Losses arising
from Disputed Statements that accurately reflect information provided to the
Trust in writing by the Portfolio Manager and that cannot be independently
verified by the Trust. Further, the indemnification set forth in this Section
5(d) will not require reimbursement of fees or expenses other than those
incurred by the Trust's regular counsel in connection with such counsel's
representation of the Trust or its Trustees.
(e) The indemnification obligations set forth in Sections 5(c) and (d) shall not
apply unless (i) Disputed Statements accurately reflect information provided to
the Trust in writing by the Portfolio Manager; (ii) Disputed Statements were
included in an SEC Filing in reliance upon written information provided to the
Trust by the Portfolio Manager; (iii) the Portfolio Manager was afforded the
opportunity to review Disputed Statements in connection with the 10 business day
review requirement set forth in Section 5(b) above; and (iv) upon receipt by the
Trust of any notice of the commencement of any action or the assertion of any
claim to which the indemnification obligations set forth in Section 5(c) and (d)
may apply, the Trust notifies the Portfolio Manager, within 30 days and in
writing, of such receipt and provides to Portfolio Manager the opportunity to
participate in the defense and/or settlement of any such action or claim.
Further, Portfolio Manager will not be required to indemnify any person under
this Section 5 to the extent that Portfolio Manager relied upon statements or
information furnished to the Portfolio Manager, in writing, by any officer,
employee or Trustee of the Trust, or by the Trust's Custodian, Administrator or
Accounting Agent or any other agent of the Trust, in preparing written
information provided to the Trust and upon which the Trust relied in preparing
any Disputed Statement.
(f) Neither the Portfolio Manager nor any person that is an "affiliated person"
of the Portfolio Manager or any of its affiliated companies (collectively,
"Associated Persons") shall be liable for (i) any acts of any other portfolio
manager to the Portfolio or the Trust with respect to the portion of the assets
of the Account not managed by the Portfolio Manager; (ii) acts of the Portfolio
Manager which result from acts of the Trust, including, but not limited to, a
failure of the Trust to provide accurate and current information with respect to
any records maintained by Trust or any other portfolio manager to the Portfolio;
and (iii) disputed statements made by any other portfolio manager or the Trust.
The Trust agrees that the Portfolio Manager shall manage the Account as if it
was a separate operating series and shall comply with (a) the objectives,
policies, and limitations for the Account set forth in the Trust's current
Registration Statement, and (b) applicable laws and regulations (including, but
not limited to, the investment objectives, policies and restrictions
applicable to the Account and qualification of the Account as a regulated
investment company under the Internal Revenue Code of 1986, as amended) with
respect to the portion of the assets of the Account allocated to the Portfolio
Manager. In no event shall the Portfolio Manager or its Associated Persons have
any liability arising from the conduct of the Trust and any other portfolio
manager with respect to the portion of the Portfolio's assets not allocated to
the Portfolio Manager.
6. Permissible Interest. Subject to and in accordance with the Trust's
Declaration of Trust and Bylaws and corresponding governing documents of
Portfolio Manager, Trustees, officers, agents and shareholders of the Trust may
have an interest in the Portfolio Manager as officers, directors, agents and/or
shareholders or otherwise. Portfolio Manager may have similar interests in the
Trust. The effect of any such interrelationships shall be governed by said
governing documents and the provisions of the Investment Company Act.
7. Duration, Termination and Amendments. This Agreement shall become effective
as of the date first written above and shall continue in effect for two years.
Thereafter, this Agreement shall continue in effect from year to year for so
long as its continuance is specifically approved, at least annually, by (i) a
majority of the Board of Trustees or the vote of the holders of a majority of
the Portfolio's outstanding voting securities; and (ii) the affirmative vote,
cast in person at a meeting called for the purpose of voting on such
continuance, of a majority of those members of the Board of Trustees
("Independent Trustees ") who are not "interested persons" of the Trust or any
investment adviser to the Trust.
This Agreement may be terminated by the Trust or by Portfolio Manager at any
time and without penalty upon sixty days written notice to the other party,
which notice may be waived by the party entitled to it. This Agreement may not
be amended except by an instrument in writing and signed by the party to be
bound thereby provided that if the Investment Company Act requires that such
amendment be approved by the vote of the Board, the Independent Trustees and/or
the holders of the Trust's or the Portfolio's outstanding shareholders, such
approval must be obtained before any such amendment may become effective. This
Agreement shall terminate upon its assignment. For purposes of this Agreement,
the terms "majority of the outstanding voting securities, "assignment" and
"interested person" shall have the meanings set forth in the Investment Company
Act. Any transactions entered into by Portfolio Manager on behalf of the Trust
up to the time of such notice, but not yet completed or settled, shall remain
the obligation of Trust regardless of such termination until such transactions
are so completed or settled.
8. Confidentiality; Use of Name. Portfolio Manager and the Trust acknowledge and
agree that during the term of this Agreement the parties may have access to
certain information that is proprietary to the Trust or Portfolio Manager,
respectively (or to their affiliates and/or service providers). The parties
agree that their respective officers and employees shall treat all such
proprietary information as confidential and will not use or disclose information
contained in, or derived from such material for any purpose other than in
connection with the carrying out of their responsibilities under this Agreement
and the management of the Trust's assets, provided, however, that this shall not
apply in the case of (i) information that is publicly available; and (ii)
disclosures required by law or requested by any regulatory authority that may
have jurisdiction over Portfolio Manager or the Trust, as the case may be, in
which case such party shall request such confidential treatment of such
information as may be reasonably available. In addition, each party shall use
its
best efforts to ensure that its agents or affiliates who may gain access to such
proprietary information shall be made aware of the proprietary nature and shall
likewise treat such materials as confidential.
It is acknowledged and agreed that the names "Xxxxxx Xxxxxxxxx," "Xxxxxx
Xxxxxxxxx Chief Investment Officers" (which is a registered trademark of Xxxxxx
Xxxxxxxxx & Co., Inc. ("HCCI")), and derivative of either, as well as any logo
that is now or shall later become associated with either name ("Marks") are
valuable property of HCCI and that the use of the Marks, or any one of them, by
the Trust or its agents is subject to the license granted to the Trust by HCCI.
Portfolio Manager agrees that it will not use any Xxxx without the prior written
consent of the Trust. Portfolio Manager consents to use of its name, performance
data, biographical data and other pertinent data by the Trust for use in
marketing and sales literature, provided that any such marketing and sales
literature shall not be used by the Trust without the prior written consent of
Portfolio Manager, which consent shall not be unreasonably withheld. The
provisions of this Section 8 shall survive termination of this Agreement.
It is acknowledged and agreed that the name "X.X. Xxxx Asset Management Co.,
L.L.C." and any portion or derivative thereof, as well as any logo that is now
or shall later become associated with the name ("Xxxx Marks"), are valuable
property of the Portfolio Manager and that the use of the Xxxx Marks by the
Trust or its agents are permitted only so long as this Agreement is in place and
only for the purposes required hereunder.
9. Representation, Warranties and Agreements of Portfolio Manager. Portfolio
Manager represents and warrants that:
(a) It is registered as an investment adviser under the Investment Advisers Act
of 1940 ("Investment Advisers Act"), it will maintain such registration in full
force and effect and will promptly report to the Trust the commencement of any
formal proceeding that could render the Portfolio Manager ineligible to serve as
an investment adviser to a registered investment company under Section 9 of the
Investment Company Act.
(b) Portfolio Manager represents that it is subject to a written code of ethics
("Portfolio Manager's Code") complying with the requirements of Rule
204-2(a)(12) under the Investment Advisers Act and will provide the Trust with a
copy of such code of ethics. During the period that this Agreement is in effect,
an officer or director of Portfolio Manager shall certify to the Trust, on a
quarterly basis, that Portfolio Manager has complied with the requirements of
the Portfolio Manager's Code during the prior year; and that either (i) no
violation of such code occurred or (ii) if such a violation occurred, that
appropriate action was taken in response to such violation. In addition,
Portfolio Manager acknowledges that the Trust may, in response to regulations or
recommendations issued by the Securities and Exchange Commission or other
regulatory agencies, from time to time, request additional information regarding
the personal securities trading of its directors, partners, officers and
employees and the policies of Portfolio Manager with regard to such trading.
Portfolio Manager agrees that it make every effort to respond to the Trust's
reasonable requests in this area.
(c) Upon request of the Trust, Portfolio Manager shall promptly supply the Trust
with any information concerning Portfolio Manager and its stockholders,
employees and affiliates that the Trust may reasonably require in connection
with the preparation of its registration statements, proxy materials, reports
and other documents required, under applicable state or Federal laws, to be
filed with state or Federal agencies or to be provided to shareholders of the
Trust.
10. Status of Portfolio Manager. The Trust and Portfolio Manager acknowledge and
agree that the relationship between Portfolio Manager and the Trust is that of
an independent contractor and under no circumstances shall any employee of
Portfolio Manager be deemed an employee of the Trust or any other organization
that the Trust may, from time to time, engage to provide services to the Trust,
its Portfolios or its shareholders. The parties also acknowledge and agree that
nothing in this Agreement shall be construed to restrict the right of Portfolio
Manager or its affiliates to perform investment management or other services to
any person or entity, including without limitation, other investment companies
and persons who may retain Portfolio Manager to provide investment management
services and the performance of such services shall not be deemed to violate or
give rise to any duty or obligations to the Trust.
11. Counterparts and Notice. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original. Any notice
required to be given under this Agreement shall be deemed given when received,
in writing addressed and delivered, by certified mail, by hand or via overnight
delivery service as follows:
If to the Trust: Xx. Xxxxxx X. Xxxxxxxxx, President
The Xxxxxx Xxxxxxxxx Trust
Five Tower Bridge, Suite 500
000 Xxxx Xxxxxx Xxxxx
Xxxx Xxxxxxxxxxxx, XX 00000
If to Portfolio Manager: Xx. Xxxxxxxxx Xxxxxxx
X.X. Xxxx Asset Management Co., L.L.C.
1776 On The Green
00 Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
12. Miscellaneous. 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 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. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and shall be governed by the law of the
state of Delaware provided that nothing herein shall be construed as
inconsistent with the Investment Company Act or the Investment Advisers Act.
The Trust acknowledges receipt of Part II of Portfolio Manager's Form ADV more
than 48 hours prior to the execution of this agreement, copies of which have
been provided to the Trust's Board of Trustees. As required by Section 205(a)(3)
of the Investment Advisers Act of 1940, Portfolio
Manager will notify the Trust in the event of any change in its general
managers, within a reasonable period of time after such change takes effect.
Portfolio Manager is hereby expressly put on notice of the limitations of
shareholder and Trustee liability set forth in the Declaration of Trust of the
Trust and agrees that obligations assumed by the Trust pursuant to this
Agreement shall be limited in all cases to the assets of The High Yield Bond
Portfolio. Portfolio Manager further agrees that it will not seek satisfaction
of any such obligations from the shareholders or any individual shareholder of
the Trust, or from the Trustees of the Trust or any individual Trustee of the
Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their officers thereunto duly authorized as of the day and year first written
above.
X.X. Xxxx Asset Management Co., L.L.C.
By: /s/ Xxxxxx X. Xxxxx
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By: /s/ Xxxxxxxxx Xxxx
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The Xxxxxx Xxxxxxxxx Trust
(on behalf of The High Yield Portfolio)
By: /s/ Xxxxxx Xxxx
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