AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT made this
1st day of June, 2005, by and between Xxxxxx Xxxxxxx Institutional Fund Trust
(the "Fund"), a business trust organized under the laws of the Commonwealth of
Pennsylvania, and Xxxxxx Xxxxxxx Investment Management Inc., a Delaware
corporation, as successor to Xxxxxx Xxxxxxxx & Xxxxxxxx, LLP (the "Adviser").
RECITALS
WHEREAS, the Fund entered into an Investment Advisory Agreement
to provide investment advisory services with Xxxxxx Xxxxxxxx & Xxxxxxxx, LLP,
effective as of May 1, 1997, as amended (the "Current Investment Advisory
Agreement"); and
WHEREAS, this Agreement amends and restates, in its entirety,
the Current Investment Advisory Agreement to reduce the fee payable by certain
of the Fund's Portfolios under this Agreement;
AGREEMENTS
Now, therefore, the Fund and the Adviser agree as follows:
1. Duties of Adviser. The Fund hereby appoints the Adviser to act as
investment adviser to each of the Portfolios listed on Schedule A hereto (the
"Portfolios"), for the period and on such terms set forth in this Agreement.
The Fund employs the Adviser to manage the investment and reinvestment of the
assets of the Portfolios, to continuously review, supervise and administer
the investment program of each of the Portfolios, to determine in its
discretion the securities to be purchased or sold and the portion of each such
Portfolio's assets to be held uninvested, to provide the Fund with records
concerning the Adviser's activities which the Fund is required to maintain,
and to render regular reports to the Fund's officers and Board of Trustees
concerning the Adviser's discharge of the foregoing responsibilities. The
Adviser shall discharge the foregoing responsibilities subject to the
control of the officers and the Board of Trustees of the Fund, and in
compliance with the objectives, policies and limitations set forth in the
Fund's prospectus and applicable laws and regulations. The Adviser accepts
such employment and agrees to render the services and to provide, at its own
expense, the office space, furnishings and equipment and the personnel
required by it to perform the services on the terms and for the compensation
provided herein.
2. Portfolio Transactions. The Adviser is authorized to select the
brokers or dealers that will execute the purchases and sales of securities
for each of the Portfolios and is directed to use its best efforts to obtain
the best available price and most favorable execution, except as prescribed
herein. Subject to policies established by the Board of Trustees of the
Fund, the Adviser may also be authorized to effect individual securities
transactions at commission rates in excess of the minimum commission rates
available, if the Adviser determines in good faith that such amount of
commission is reasonable in relation to the value of the brokerage or research
services provided by such broker or dealer, viewed in terms of either that
particular transaction or the Adviser's overall responsibilities with respect
to the Fund. The execution of such transactions shall not be deemed to
represent an unlawful act or breach of any duty created by this Agreement
or otherwise. The Adviser will promptly communicate to the officers and
Trustees of the Fund such information relating to portfolio transactions
as they may reasonably request.
3. Compensation of the Adviser. For the services to be rendered
by the Adviser as provided in Section 1 of this Agreement, the Fund shall
pay to the Adviser at the end of each of the Fund's fiscal quarters, an
advisory fee calculated by applying a quarterly rate, based on the annual
percentage rates set forth opposite each Portfolio's name on Schedule A
hereto, to each Portfolio's average daily net assets for the quarter.
In the event of termination of this Agreement, the fee provided
under this Section shall be computed on the basis of the period ending on
the last business day on which this Agreement is in effect subject to a
pro rata adjustment based on the number of days elapsed in the current
fiscal quarter as a percentage of the total number of days in such quarter.
4. Other Services. At the request of the Fund, the Adviser, in its
discretion may make available to the Fund office facilities, equipment,
personnel and other services. Such office facilities, equipment, personnel
and services shall be provided for or rendered by the Adviser and billed to
the Fund at the Adviser's cost.
5. Reports. The Fund and the Adviser agree to furnish to each other
current prospectuses, proxy statements, reports to shareholders, certified
copies of their financial statements, and such other information with regard
to their affairs as each may reasonably request.
6. Status of Adviser. The services of the Adviser to the Fund are
not to be deemed exclusive, and the Adviser shall be free to render similar
services to others so long as its services to the Fund are not impaired
thereby.
7. Liability of Adviser. In the absence of (i) willful misfeasance,
bad faith or gross negligence on the part of the Adviser in performance of
its obligations and duties hereunder, (ii) reckless disregard by the Adviser
of its obligations and duties hereunder, or (iii) a loss resulting from a
breach of fiduciary duty with respect to the receipt of compensation for
services (in which case any award of damages shall be limited to the period
and the amount set forth in Section 36(b)(3) of the Investment Company Act
of 1940, as amended (the "1940 Act"), the Adviser shall not be subject to
any liability whatsoever to the Fund, or to any shareholder of the Fund,
for any error or judgment, mistake of law or any other act or omission in
the course of, or connected with, rendering services hereunder including,
without limitation, for any losses that may be sustained in connection with
the purchase, holding, redemption or sale of any security on behalf of any
Portfolio of the Fund.
8. Permissible Interests. Subject to and in accordance with the
Declaration of Trust of the Fund and the Partnership Agreement (or other
governing or organizational documents) of the Adviser, Trustees, agents
and shareholders of the Fund are or may be interested in the Adviser (or
any successor thereof) as officers or partners, or otherwise; officers,
agents and partners of the Adviser are or may be interested in the Fund as
Trustees, officers, shareholders or otherwise; and the Adviser (or any
successor) is or may be interested in the Fund as a shareholder or otherwise.
The effect of any such interrelationships shall be governed by said Declaration
of Trust or Partnership Agreement (or other governing or organizational
documents) and provisions of the 1940 Act.
9. Declaration of Trust. The Adviser is hereby expressly put on notice
of the limitation of shareholder liability as set forth in Article VIII of the
Declaration of Trust of the Fund and agrees that the obligations assumed by
the Fund pursuant to this Agreement shall be limited in all cases to the Fund
and its assets, and the Adviser shall not seek satisfaction of any such
obligation from the shareholders or any shareholder of the Fund. Nor shall
the Adviser seek satisfaction of any such obligations from the Trustees or any
individual Trustee.
10. Duration and Termination. This Agreement, unless sooner terminated
as provided herein, shall continue so long as such continuance is specifically
approved at least annually (a) by the vote of a majority of those members of
the Board of Trustees of the Fund who are not parties to this Agreement or
interested persons of any such party, cast in person at a meeting called for
the purpose of voting on such approval, and (b) by the Board of Trustees of
the Fund or by vote of a majority of the outstanding voting securities of
each Portfolio of the Fund; provided, however that if the holders of any
Portfolio fail to approve the Agreement as provided herein, the Adviser may
continue to serve in such capacity in the manner and to the extent
permitted by the 1940 Act and Rules thereunder. This Agreement may be
terminated by any Portfolio of the Fund at any time, without the payment
of any penalty, by vote of a majority of the entire Board of Trustees of
the Fund or by vote of a majority of the outstanding voting securities of
the Portfolio on 60 days' written notice to the Adviser. This Agreement may
be terminated by the Adviser at any time, without the payment of any penalty,
upon 90 days' written notice to the Fund. This Agreement will automatically
and immediately terminate in the event of its assignment. Any notice under
this Agreement shall be given in writing, addressed and delivered or mailed
postpaid, to the other party at any office of such party.
As used in this Section 10, the terms "assignment,"
"interested persons," and "a vote of a majority of the outstanding voting
securities" shall have the respective meanings set forth in Section 2(a)(4),
Section 2(a)(19) and Section 2(a)(42) of the 1940 Act.
11. Amendment of Agreement. This Agreement may be amended by mutual
consent, but the consent of the Fund must be approved (a) by a vote of a
majority of those members of the Board of Trustees of the Fund who are not
parties to this Agreement or interested persons of any such party, cast in
person at a meeting called for the purpose of voting on such amendment, and
(b) by vote of a majority of the outstanding voting securities of each
Portfolio of the Fund.
12. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of this 1st day of June, 2005.
XXXXXX XXXXXXX INVESTMENT MANAGEMENT INC.
By
Name:
Title:
XXXXXX XXXXXXX INSTITUTIONAL FUND TRUST
By
Name:
Title:
Schedule A
Portfolio
Contractual Rate of Advisory Fees
Advisory Foreign Fixed Income II Portfolio
0.375%
Advisory Foreign Fixed Income Portfolio
0.375%
Advisory Mortgage Portfolio
0.375%
Balanced Plus Portfolio
0.550%
Balanced Portfolio
0.450%
Core Plus Fixed Income Portfolio
0.375% of the portion of the daily net assets not exceeding $1 billion;
0.30% of the portion of the daily net assets exceeding $1 billion
Equity Portfolio
0.50% of the portion of the daily net assets not exceeding $150 million;
0.45% of the portion of the daily net assets exceeding $150 million but
not exceeding $250 million; 0.40% of the portion of the daily net assets
exceeding $250 million but not exceeding $350 million; 0.35% of the portion
of the daily net assets exceeding $350 million
Growth Portfolio
0.500%
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
High Yield Portfolio
0.42% of the portion of the daily net assets not exceeding $500 million;
0.345% of the daily net assets exceeding $500 million but not exceeding
$750 million; 0.295% of the portion of the daily net assets exceeding
$750 million but not exceeding $1 billion; 0.27% of the portion of the
daily nets assets exceeding $1 billion but not exceeding $2 billion;
0.245% of the daily net assets exceeding $2 billion but not exceeding
$3 billion; 0.22% of the portion of the daily net assets exceeding $3 billion.
Intermediate Duration Portfolio
0.375%
International Fixed Income Portfolio
0.375%
Investment Grade Credit Advisory Portfolio
0.375%
Investment Grade Fixed Income Portfolio
0.375%
Limited Duration Portfolio
0.300%
Mid Cap Growth Portfolio
0.500%
Mortgage Advisory Portfolio
0.375%
Municipal Portfolio
0.375%
New York Municipal Portfolio
0.375%
Targeted Duration Portfolio
0.375
U.S. Core Fixed Income Portfolio
0.375%
U.S. Mid Cap Value Portfolio
0.72% of the portion of the daily net assets not exceeding $1 billion;
0.65% of the portion of the daily net assets exceeding $1 billion
U.S. Small Cap Value Portfolio
0.67% of the portion of the daily net assets not exceeding $500 million;
0.645% of the portion of the daily net assets exceeding $500 million but
not exceeding $1 billion; 0.62% of the portion of the daily net assets
exceeding $1 billion
Value II Portfolio
0.50%
Value Portfolio
0.50% of the portion of the daily net assets not exceeding $1 billion;
0.45% of the portion of the daily net assets exceeding $1 billion but
not exceeding $2 billion; 0.40% of the portion of the daily net assets
exceeding $2 billion but not exceeding $3 billion; 0.35% of the portion
of the daily net assets exceeding $3 billion
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NYA 690582.6
