EXHIBIT 5(d)
INVESTMENT ADVISORY SERVICES AGREEMENT
This INVESTMENT ADVISORY SERVICES AGREEMENT (this "Agreement") is entered
into as of July 15, 1997, by and between GMG/Seneca Capital Management, L.P., a
limited partnership organized and existing under the laws of the State of
California, having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Partnership"), and GMG/Seneca
Capital Management LLC, a limited liability company organized and existing under
the laws of the State of California, having its principal place of business at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Company").
WHEREAS, the Partnership and the Company are registered investment advisers
registered under the Investment Advisers Act of 1940, as amended from time to
time;
WHEREAS, the Partnership performs investment advisory services pursuant to
certain investment advisory contracts (collectively, the "Investment Advisory
Contracts"), including, without limitation, as manager of the Seneca Bond Fund,
the Seneca Growth Fund, the Seneca Mid-Cap "EDGE" Fund and the Seneca Real
Estate Securities Fund (collectively, the "Seneca Sponsored Funds") and the
subadvisor for the Working Assets Money Market Portfolio, E*Fund, ▇▇▇▇
California Tax-Free Income, Citizens Income and Emerging Growth Portfolios
(collectively, the "Citizens Funds") and, together with the Seneca Sponsored
Funds, the "Funds");
WHEREAS, the Partnership desires to obtain from the Company, upon request
of the Partnership, all services necessary or convenient to the conduct of its
business as investment manager or subadvisor with respect to the Funds and the
performance of the Investment Advisory Contracts including, without limitation,
investment research and analysis services, human resource software), building
services, supplies and other investment, operating, administrative and clerical
services necessary or appropriate in connection with supervising and managing
the investments of that Funds, directing the purchase and sale of investments of
the Funds and ensuring that investments follow the investment objective,
strategies, and policies of the applicable Fund and comply with government
regulations (the "Services"); and
WHEREAS, the Company is willing to provide the Services subject to and in
accordance with the terms of this Agreement and to maintain a qualified staff
possessing the necessary experience and expertise to provide the Services.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
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SERVICES TO BE PROVIDED BY THE COMPANY: COMPENSATION
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1.01 The Company shall provide such Services to the Partnership, as
applicable, as the Partnership may request from time to time, in accordance with
and subject to the terms hereof,
and shall maintain a properly qualified staff and perform its obligations
hereunder in accordance with its current standard practices, policies and
procedures. In particular, the Company shall provide the Partnership with the
investment management services of ▇▇▇▇ ▇. Seneca, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ and each other employee of the Company who is a member
of any investment team with respect to any of the Seneca Sponsored Funds, for so
long as such employees remain employees of the Company (it being understood that
the Company has no present intention of terminating any of such employees during
the term of this Agreement). In addition, the Company acknowledges that ▇▇▇▇ ▇.
Seneca is the Investment Officer of the Partnership and may provide Services
directly to the Partnership in such capacity.
1.02 For providing the Services (including any services rendered by ▇▇▇▇ ▇.
Seneca in her capacity as the Investment Officer of the Partnership), the
Partnership shall reimburse and compensate the Company in an amount equal to the
reasonable cost to the Company (as determined by the Company with the prior
written approval of the Partnership) of providing the Services, which shall
include the pro rata portion of all fixed costs (such as annual salaries,
equipment and office leases, and similar expenses) and all variable costs
relating to the Company's performance of the Services. The Partnership shall pay
all amounts due pursuant to this Section 1.02 within a reasonable period of time
after accrual thereof and in accordance with the customary payment practices of
the Partnership.
ARTICLE 2
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TERM
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2.01 This Agreement shall commence on the date hereof and continue in full
force and effect until the earlier of (i) the LP Closing Date (as defined in the
Purchase Agreement) and (ii) the effective date of termination of this Agreement
in accordance with Section 2.02 hereof.
2.02 In the event that the parties to the Purchase Agreement determine that
the LP Closing will not take place for any reason, either the Partnership or the
Company may terminate this Agreement upon written notice to the other party in
accordance with Section 3.01 hereof, with such termination being effective
immediately or on such other date as may be indicated in such notice, provided
that such termination may not be effected unless and until the Investment
Advisory Contracts have terminated.
2.03 The termination of this Agreement shall not affect the obligation of
the Partnership to pay the Company the amounts due to the Company hereunder with
respect to the performance of its Services prior to the date of termination.
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ARTICLE 3
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MISCELLANEOUS
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3.01 All notices, requests and other communications to any party hereunder
shall be in writing (including facsimile transmission) and shall be given,
if to the Partnership, to:
GMG/Seneca Capital Management, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Seneca
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Floor, P.C.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Company, to:
GMG/Seneca Capital Management LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Seneca
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Phoenix Duff & ▇▇▇▇▇▇ Corporation
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Vice President and General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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and
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Floor, P.C.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Except as expressly set forth to the contrary in this Agreement, all such
notices, requests or other communications provided for or permitted to be given
under this Agreement must be in writing and shall be given either by registered
or certified mail, addressed to the recipient, with return receipt requested, or
by delivering the writing to the recipient in person, by courier, or by
facsimile transmission; and a notice, request or communication given under this
Agreement is effective upon receipt or three (3) days after the date mailed,
whichever is sooner.
3.02 (a) Any provision of this Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement, or in the case of a waiver, by the
party against whom the waiver is to be effective.
(b) No failure of delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
3.03 This Agreement is personal to the parties, and no rights or
obligations under this Agreement may be assigned by any party (including as a
result of an assignment by operation of law) without the prior written consent
of the other party. No assignment of this Agreement by a party hereto shall
relieve such party of any of its obligations hereunder.
3.04 Subject to the provisions of Section 3.03, the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
3.05 This Agreement shall be governed by and construed in accordance with
the law of the State of California, without regard to the conflict of laws rules
of such state.
3.06 If any provision of this Agreement or the application thereof to any
person or circumstance is held invalid or unenforceable to any extent, the
remainder of this Agreement and the application of that provision shall be
enforced to the fullest extent permitted by law.
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3.07 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
3.08 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter of this Agreement. No representation, inducement,
promise, understanding, condition or warranty not set forth herein has been made
or relied upon by either party hereto. Neither this Agreement nor any provision
hereof is intended to confer upon any person other than the parties hereto any
rights or remedies hereunder, including the rights of employment. The
individuals providing the Services on behalf of the Company shall be for all
purposes employees of the Company and shall not be employees of the Partnership.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF the parties hereto have caused this Investment Advisory
Services Agreement to be executed by their duly authorized representative as of
the day and year first written above.
GMG/SENECA CAPITAL MANAGEMENT L.P.
By: /s/ ▇▇▇▇ ▇. Seneca
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Name: ▇▇▇▇ ▇. Seneca
Title: Managing General Partner/Chief
Executive Officer
GMG/SENECA CAPITAL MANAGEMENT LLC
By: /s/ ▇▇▇▇ ▇. Seneca
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Name: ▇▇▇▇ ▇. Seneca
Title: President/Chief Executive Officer