EXHIBIT 5.(d)
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INVESTMENT TRUST
INVESTMENT ADVISORY AGREEMENT
This INVESTMENT ADVISORY AGREEMENT ("Agreement") is made as of the 1st
day of October, 1997, by and between ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INVESTMENT TRUST, a
business trust organized and existing under the laws of the Commonwealth of
Massachusetts (the "Trust"), with respect to its series of shares known as THE
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ DEVELOPING COUNTRIES FUND (the "Fund"), and ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & COMPANY INVESTMENT MANAGEMENT, L.P. (the "Adviser").
W I T N E S S E T H
WHEREAS, the Trust is an open-end diversified, management investment
company, registered as such under the Investment Company Act of 1940, as amended
(the "Act"); and
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended (the "Advisers Act"), and is engaged
in the business of supplying investment advice, investment management and
administrative services as an independent contractor; and
WHEREAS, the Trust desires to retain the Adviser to render advice and
services to the Trust and Fund pursuant to the terms and provisions of this
Agreement, and the Adviser is interested in furnishing said advice and services;
NOW, THEREFORE, in consideration of the covenants and the mutual
promises hereinafter set forth, the parties hereto mutually agree as follows:
1. EMPLOYMENT OF ADVISER. (a) The Trust hereby employs the
Adviser, and the Adviser hereby accepts such employment, to render investment
advice and investment management services with respect to the assets of the
Fund, consistent with the investment objectives and policies of the Fund and
subject to the supervision and direction of the Trust's Board of Trustees. The
Adviser shall, except as otherwise provided for herein, render or make available
all administrative services needed for the management and operation of the Fund,
and shall, as part of its duties hereunder (i) furnish the Trust with investment
advice, research and recommendations with respect to the investment of the
Fund's assets and the purchase and sale of its portfolio securities, including
the taking of such other steps as may be necessary to implement such advice and
recommendations, (ii) furnish the Trust and Fund with
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reports, statements and other data on securities, economic conditions and other
pertinent subjects which the Trust's Board of Trustees may request, (iii)
furnish such office space and personnel as are needed by the Fund, and (iv) in
general superintend and manage the investments of the Fund, subject to the
ultimate supervision and direction of the Trust's Board of Trustees.
(b) The Adviser shall determine the securities to be purchased
or sold by the Fund and will place orders pursuant to its determinations with or
through such persons, brokers or dealers (including, without limitation,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company LLC) in conformity with the policy with respect to
brokerage as set forth in the Trust's Registration Statement and the Fund's
Prospectus and Statement of Additional Information, or as the Trustees may
otherwise direct from time to time. The Adviser shall not execute portfolio
transactions for the account of the Fund with a broker or dealer which is an
"affiliated person" (as defined in the Act) of the Adviser or the Trust, or with
an affiliated person of such a person, except pursuant to procedures adopted by
the Trustees in accordance with Section 17(e) and Rule 17e-1 under the Act.
The Adviser shall render regular reports to the Trustees of the total brokerage
business placed and the manner in which the allocation has been accomplished.
(c) In all matters relating to the performance of this
Agreement, the Adviser will act in conformity with the Trust's Declaration of
Trust, By-Laws and Registration Statement, the Fund's current Prospectus and
Statement of Additional Information and all procedures adopted by the Trust's
Board of Trustees from time to time, and will conform to and comply with all
applicable requirements of the Investment Company Act of 1940, as amended, the
rules and regulations thereunder, and all other applicable Federal or state laws
and regulations.
2. SUB-ADVISERS AND CONSULTANTS. The Adviser may from time to time,
in its discretion, delegate certain of its responsibilities under this Agreement
to one or more qualified companies, each of which is registered under the
Advisers Act, provided that the separate costs of employing such companies and
of the companies themselves are borne by the Adviser and not by the Fund.
3. ADVISER IS INDEPENDENT CONTRACTOR. The Adviser shall, for all
purposes herein, be deemed to be an independent contractor, and shall, unless
otherwise expressly provided and authorized, have no authority to act for or
represent the Trust or Fund in any way, or in any way be deemed an agent for the
Trust or Fund. It is expressly understood and agreed that the services to be
rendered by the Adviser to the Trust and Fund under the provisions of this
Agreement are not to be deemed exclusive, and the Adviser shall be free to
render similar or different services to others so long as its ability to render
the services provided for in this Agreement shall not be impaired thereby.
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4. RESPONSIBILITIES AND PERSONNEL OF ADVISER. The Adviser agrees to
use its best efforts in the furnishing of investment advice, research and
recommendations to the Fund, in the preparation of reports and information, and
in the management of the Fund's assets, all pursuant to this Agreement, and for
this purpose the Adviser shall, at its own expense, maintain such staff and
employ or retain such personnel and consult with such other persons as it shall
from time to time determine to be necessary to the performance of its
obligations 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 retained by the Adviser to furnish statistical, research,
and other factual information, 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 and request.
5. FURNISHING OF STATEMENTS AND REPORTS. The Trust shall from time
to time furnish to the Adviser detailed statements of the portfolio investments
and assets of the Fund and information as to its investment objectives and
needs, and shall make available to the Adviser such financial reports, business
descriptions and plans, proxy statements, legal and other information relating
to its investments as may be in the possession of the Trust or available to it,
and such other information as the Adviser may reasonably request.
6. EXPENSES OF EACH PARTY. (a) The Adviser shall bear all expenses
in connection with the performance of its services under this Agreement. The
Adviser shall also pay (i) all compensation, if any, to the executive officers
of the Fund and their related expenses and (ii) all compensation, if any, and
out-of-pocket expenses of the Trust's trustees who are "interested persons" of
the Trust (as defined in the Act).
(b) The Trust shall bear all expenses of the Fund's
organization, operations, and business not specifically assumed or agreed to be
paid by the Adviser as provided in this Agreement. In particular, but without
limiting the generality of the foregoing, the Trust on behalf of the Fund and
out of the Fund's assets shall pay:
i. CUSTODY AND ACCOUNTING SERVICES. All expenses of the
transfer, receipt, safekeeping, servicing and accounting for the cash,
securities, and other property of the Fund, including, without
limitation, all charges of depositories, custodians, and other agents,
if any;
ii. SHAREHOLDER SERVICING. All expenses of maintaining and
servicing shareholder accounts, including all charges for transfer,
shareholder recordkeeping, dividend disbursing, redemption, and other
agents for the benefit of the Fund;
iii. BOOKS AND RECORDS. All costs and expenses associated
with the maintenance of the Fund's books of account and records as
required by the Act;
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iv. SHAREHOLDER COMMUNICATIONS. All expenses of preparing,
printing, and distributing reports and other communications to
shareholders;
v. SHAREHOLDER MEETINGS. All fees and expenses incidental
to holding meetings of shareholders, including, without limitation,
the printing of notices and proxy material, and proxy solicitation
therefor, provided that the Adviser shall be responsible for and
assume all expenses and fees with respect to meetings of the Fund's
shareholders held solely for the benefit of the Adviser;
vi. PROSPECTUSES AND STATEMENTS OF ADDITIONAL INFORMATION.
All expenses of preparing and printing of annual or more frequent
revisions of the Prospectus and Statement of Additional Information
relating to the offering of Fund's shares and of mailing them to
shareholders;
vii. PRICING. All expenses of computing the Fund's net asset
value per share, including, without limitation, the cost of any
equipment or services used for obtaining price quotations;
viii. COMMUNICATION EQUIPMENT. All charges for equipment or
services used for communication between the Adviser or the Trust and
the custodian, transfer agent or any other agent selected by the
Trust;
ix. LEGAL AND ACCOUNTING FEES AND EXPENSES. All charges for
services and expenses of the Trust's legal counsel and independent
auditors for the benefit of the Trust;
x. TRUSTEES' FEES AND EXPENSES. All compensation of
trustees, other than those who are interested persons of or affiliated
with the Adviser, and all expenses incurred in connection with their
service and meetings;
xi. FEDERAL REGISTRATION FEES. All fees and expenses of
registering and maintaining the registration of the Trust under the
Act and the registration of Fund shares under the Securities Act of
1933, as amended (the "1933 Act"), including, without limitation, all
fees and expenses incurred in connection with the preparation,
printing, and filing of any registration statement, Prospectus and
Statement of Additional Information under the 1933 Act or the Act, and
any amendments or supplements thereto that may be made from time to
time;
xii. STATE REGISTRATION FEES. All fees and expenses
(including, without limitation, the compensation of personnel who may
be employed by the Adviser or an affiliate) of qualifying and
maintaining qualification of the Trust and of the Fund shares for sale
under securities laws of various states or jurisdictions, and of
registration and qualification of the Trust under all other laws
applicable
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to the Trust or its business activities (including, without
limitation, registering the Trust as a broker-dealer, or any officer
of the Trust or any person as agent or salesman of the Trust in any
state);
xiii. ISSUE AND REDEMPTION OF TRUST SHARES. All expenses
incurred in connection with the issue, redemption, and transfer of
Fund shares, including, without limitation, the expense of confirming
all Fund share transactions, and of preparing and transmitting the
Fund's share certificates;
xiv. BONDING AND INSURANCE. All expenses of bond, liability,
and other insurance coverage required by law or deemed advisable by
the Board of Trustees;
xv. BROKERAGE COMMISSIONS. All brokerage commissions and
other charges and expenses incident to the purchase, sale, or lending
of the Fund's portfolio securities;
xvi. TAXES. all taxes or governmental fees payable by or with
respect of the Trust or Fund to federal, state, or other governmental
agencies, domestic or foreign, including, without limitation, stamp or
other transfer taxes;
xvii. TRADE ASSOCIATION FEES. All fees, dues, and other
expenses incurred in connection with the Trust's membership in any
trade association or other investment organization;
xviii. INTEREST. All interest which may accrue and be payable as
a result of the Fund's activities;
xix. STATIONERY AND POSTAGE. The cost of all stationery and
postage required by the Fund, unless otherwise payable by another
party with respect to an activity or expense referred to above; and
xx. NONRECURRING AND EXTRAORDINARY EXPENSES. Such
nonrecurring expenses as may arise, including, without limitation, the
costs of actions, suits, or proceedings to which the Trust on behalf
of the Fund is a party and the expenses the Trust on behalf of the
Fund may incur as a result of its legal obligation to provide
indemnification to its officers, trustees, and agents.
(c) With respect to other series of shares of the Trust, the
Fund shall only be responsible for expenses directly attributable to it and its
operations and for such other costs and expenses of the Trust as the Board of
Trustees may be resolution or otherwise direct.
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7. REIMBURSEMENT FOR ADVANCED COSTS AND EXPENSES. To the extent the
Adviser incurs any costs or performs any services which are an obligation of the
Trust or the Fund, as set forth herein, the Trust on behalf of the Fund and out
of the Fund's assets shall promptly reimburse the Adviser for such costs and
expenses. To the extent the services for which the Fund is obligated to pay are
performed by the Adviser, the Adviser shall be entitled to recover from the Fund
only to the extent of its actual costs for such services.
8. FEES. (a) The Trust on behalf of the Fund and out of the Fund's
assets agrees to pay to the Adviser, and the Adviser agrees to accept, as full
compensation for all services furnished or provided to the Trust and Fund
hereunder, and as full reimbursement for all expenses assumed by the Adviser, a
management fee computed at the rate of 1.25% per annum of the average daily net
assets of the Fund.
(b) The management fee shall be accrued daily during each
month by the Trust on behalf of the Fund and paid to the Adviser on the first
business day of the succeeding month. The initial monthly fee under this
Agreement shall be payable on the first business day of the first month
following the effective date of this Agreement. The fee to the Adviser shall be
prorated for the portion of any month in which this Agreement is in effect which
is not a complete month according to the proportion which the number of calendar
days in the month during which the Agreement is in effect bears to the number of
calendar days in the month. If this Agreement is terminated prior to the end of
any month, the fee to the Adviser shall be payable within ten (10) days after
the date of termination.
(c) To the extent that the gross operating costs and expenses
of the Fund (excluding any interest, taxes, brokerage commissions, distribution
fees paid pursuant to the Distribution Plan pursuant to Rule 12b-1, and, with
the prior written approval of any state securities commission requiring same,
any extraordinary expenses, such as litigation), exceed the most stringent
expense limitation requirement of the states in which shares of the Fund are
qualified for sale, the Adviser shall reimburse the Fund or waive its
compensation hereunder for the amount of such excess.
(d) The Adviser may reduce or waive any portion of the
compensation due to it hereunder, or for reimbursement of expenses by the Trust
pursuant to Paragraph 7 of this Agreement, and any such reduction or waiver
shall be applicable only with respect to the specific items waived and shall not
constitute a waiver of any future compensation or reimbursement due to the
Adviser hereunder.
9. SHORT POSITIONS IN FUND'S SHARES. The Adviser agrees that
neither it nor any of its officers or employees shall take any short position in
the shares of the Fund. This prohibition shall not prevent the purchase of such
shares by any of the officers and Trustees or employees of the Adviser or any
trust, pension, profit-sharing or other benefit plan for such persons or
affiliates thereof, at a price not less than the net asset value thereof at the
time of purchase, as allowed pursuant to rules promulgated under the Act.
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10. RELATIONSHIP TO PROVISIONS OF AGREEMENT AND DECLARATION OF TRUST.
Nothing herein contained shall be deemed to require the Trust to take any action
contrary to its Agreement and Declaration of Trust or any applicable statute or
regulation, or to relieve or deprive the Board of Trustees of the Trust of its
responsibility for and control of the conduct of the affairs of the Trust and
Fund.
11. DUTIES AND STANDARDS OF CARE. (a) In the absence of willful
misfeasance, bad faith, gross negligence, or reckless disregard of obligations
or duties hereunder on the part of the Adviser, the Adviser shall not be subject
to liability to the Trust, the Fund or to any shareholder of the Fund for any
act or omission in the course of, or connected with, rendering services
hereunder or for any losses that may be sustained in the purchase, holding or
sale of any security by the Fund.
(b) No provision of this Agreement shall be construed to
protect any Trustee or officer of the Trust or director or of officer of the
Adviser from liability in violation of Sections 17(h) and (i) of the Act.
(c) A copy of the Agreement and Declaration of Trust of the
Trust is on file with the Secretary of State of The Commonwealth of
Massachusetts and notice is hereby given that this Agreement is executed on
behalf of the Trustees of the Trust as Trustees, and not individually, and that
the obligations arising out of this Agreement are not binding upon the Trustees
or holders of the Trust's shares individually but are binding only upon the
assets and property of the Fund. The Adviser acknowledges that it has received
notice of and accepts the limitations of liability as set forth in the Agreement
and Declaration of Trust of the Trust. The Adviser agrees that the Trust's
obligations hereunder shall be limited to the Fund and to its assets, and that
the Adviser or any affiliated or related party shall not seek satisfaction of
any such obligation from any shareholder of the Fund nor from any trustee,
officer, employee or agent of the Trust.
12. TERM AND RENEWAL. This Agreement shall remain in effect for a
period of two (2) years from the date hereof, unless sooner terminated in
accordance with Paragraph 13 hereof, and shall continue in effect from year to
year thereafter so long as such continuation is approved at least annually by
(a) the Board of Trustees of the Trust or by the vote of a majority of the
outstanding voting securities of the Fund, and (b) the vote of a majority of the
Trustees of the Trust who are not parties to this Agreement or interested
persons of any such party, cast in person at a meeting for the purpose of voting
on such approval.
13. TERMINATION. This Agreement may be terminated at any time,
without payment of any penalty, by the Board of Trustees of the Trust or by a
vote of a majority of its outstanding voting securities, upon sixty (60) days'
prior written notice to the Adviser, and by the Adviser upon sixty (60) days'
prior written notice to the Trust. This Agreement shall also terminate in the
event of any transfer or assignment thereof, as defined in the Act.
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14. CERTAIN DEFINITIONS. The terms "majority of the outstanding
voting securities" of the Trust or Fund and "interested persons" shall have the
meanings as set forth in the Act. The term "net assets" shall have the meaning
and shall be calculated as set forth in the Trust's Registration Statement from
time to time.
15. 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.
16. HEADINGS. The headings used herein are for convenience and ease
of reference only. No legal effect is intended, nor is to be derived from such
headings.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and attested by their duly authorized officers, all as of the
day and year first above written.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INVESTMENT
TRUST
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Treasurer
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
COMPANY INVESTMENT
MANAGEMENT, L.P.
By: Bayview Holdings, Inc.,
General Partner
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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President
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