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Exhibit 99.23.d
MANAGEMENT AGREEMENT
TO: ▇▇▇▇▇▇▇ Investment Counsel, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Dear Sir:
▇▇▇▇▇▇▇ 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 five series of shares to
investors: the ▇▇▇▇▇▇▇ Growth Fund, the ▇▇▇▇▇▇▇ Fixed Income Fund, the ▇▇▇▇▇▇▇
Opportunity Fund, the ▇▇▇▇▇▇▇ Municipal Income Fund and the ▇▇▇▇▇▇▇ Realty Fund.
The Trust has previously entered into a management agreement (the
"Original Agreement") dated December 18, 1992, with you on behalf of the ▇▇▇▇▇▇▇
Growth Fund and the ▇▇▇▇▇▇▇ Fixed Income Fund. The Trust has previously entered
into a management agreement dated February 15, 1994, with you on behalf of the
▇▇▇▇▇▇▇ Opportunity Fund and the ▇▇▇▇▇▇▇ Municipal Income Fund. The Trust has
also previously entered into a management agreement dated December 30, 1997 with
you on behalf of the ▇▇▇▇▇▇▇ Realty Fund (the "Fund"). The Trust is organizing
three new series, the JIC Institutional Fixed Income Fund Series 1, the JIC
Institutional Fixed Income Fund Series 2, and the JIC Institutional Fixed Income
Fund Series 3, (the "Funds").
You have been selected to act as the sole investment adviser to
the Funds and to provide certain other services to the Funds, 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. The
Original Agreement provides that your compensation with respect to series
established after December 18, 1992, may be determined pursuant to a different
fee than in the Original Agreement. The Board has determined, in the exercise of
its fiduciary duty, that it is in the best interests of the shareholders of the
Trust to enter into a separate management agreement, including a different fee
arrangement, with you on behalf of the Funds. 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 Funds with such investment
advice as you, in your discretion, deem advisable, and will furnish a continuous
investment program for each of the Funds consistent with the respective series'
investment objectives and policies. You will determine the securities to be
purchased for each of the Funds, the portfolio securities to be held or sold by
each of the Funds, and the portion of the Funds' assets to be held uninvested,
subject always to the series' investment objectives, 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
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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 Funds.
2. ALLOCATION OF CHARGES AND EXPENSES
You will pay all organizational and operating expenses
of the Funds, including the compensation and expenses of any trustees, officers,
and employees of the Trust and of any other persons rendering any services to
the Funds; clerical and shareholder service staff salaries; office space and
other office expenses; fees and expenses incurred by the Funds in connection
with membership in investment company organizations; legal, auditing and account
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 Funds; expenses, including clerical expenses, of issue, sale, redemption or
repurchase of shares of the Funds; 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 Funds
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 Funds' shares (excluding expenses which each
Fund is authorized to pay pursuant to Rule 12b-1 under the Investment Company
Act of 1940, as amended (the "1940 Act"); and all other organizational and
operating expenses not specifically assumed by the Funds.
The Funds will pay all brokerage fees and commissions, taxes,
borrowing costs (such as (a) interest (b) dividend expenses on securities sold
short), and their 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. Each
Fund will also pay expenses which it is authorized to pay pursuant to Rule 12b-1
under the 1940 Act. You may obtain reimbursement from the Funds, at such time or
times as you may determine in your sole discretion, for any of the expenses
advanced by you, which the Funds is obligated to pay, and such reimbursement
shall not be considered to be part of your compensation pursuant to this
Agreement.
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 day of each month, the JIC
Institutional Fixed Income Fund Series 1 will pay you a fee at the annual rate
of 0.30% of the average value of its daily net assets, the JIC Institutional
Fixed Income Fund Series 2 will pay you a fee at the annual rate of 0.30% of the
average value of its daily net assets, and the JIC Institutional Fixed Income
Fund Series 3 will pay you a fee at the annual rate of 0.30% of the average
value of its daily net assets.
The average value of the daily net assets of each of the
Funds 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 a 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
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value of the net assets may lawfully be determined, on that day. If the
determination of the net asset value of a 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 Funds, 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 series 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) the Trust 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 portfolio transaction for the Funds 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 Trust 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 Funds and you, it is not
possible to place a dollar value on such information. The Board shall
periodically review the commissions paid by the Funds to determine if the
commissions paid over representative periods of time were reasonable in relation
to the benefits to the Funds.
Consistent with the Rules of Fair Practice of the
National Association of Securities Dealers, Inc. and subjective 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 the Trust portfolio transactions.
Subject to the provisions of the 1940 Act and other
applicable law, you or any of your affiliates may retain compensation in
connection with effecting the Funds' 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 Funds, you will
act solely as investment counsel for such client and not in any way on behalf of
the Funds. Your services to the Funds 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.
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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 1940 Act or
the rules thereunder, neither you nor your 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 ▇▇▇▇ ▇▇▇) of the
outstanding voting securities of the Funds, provided that in either event,
continuance is also approved by a majority of the trustees who are not
"interested persons" as defined in the 1940 Act 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 Funds 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 Funds to you for your services to 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 Funds 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 Funds 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
"▇▇▇▇▇▇▇" 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 adviser
to the Funds, the Funds' right to the use of the name "▇▇▇▇▇▇▇" shall
automatically cease on the thirtieth day following the this Agreement.
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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 Funds. Nothing contained
herein shall impair or diminish in any respect your right to use the name
"▇▇▇▇▇▇▇" 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 Funds for
the right to use this name.
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 1940 Act, by vote of the holders of a majority of the
outstanding voting securities of the Funds to which the amendment relates.
9. LIMITATION OF LIABILITY TO TRUST PROPERTY
The term "▇▇▇▇▇▇▇ Mutual Funds Trust" means and refers to
the Trustees from time to time serving under the Trust's 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 Declaration of Trust of the Trust. The execution and
delivery of this Agreement have been authorized by the trustees and shareholders
of the Funds 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 Declaration of
Trust. A copy of the Agreement of Declaration of Trust of the Trust is on file
with the Secretary of the 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
This Agreement shall be governed by the laws of the
State of Ohio. 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 1940 Act, shall be resolved by reference to such term or provision of the
1940 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 the Securities
and Exchange Commission or its staff. In addition, where the effect of a
requirement of the 1940 Act, reflected in any provision of this Agreement, is
revised by rule, regulation, order or interpretation of the Securities and
Exchange Commission or its staff, such provision shall be deemed to incorporate
the effect of such rule, regulation, order or interpretation.
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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 your address for this purpose shall be ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇.
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.
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,
▇▇▇▇▇▇▇ MUTUAL FUNDS TRUST
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
ATTEST:
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, CFO
Dated:
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MANAGEMENT AGREEMENT
ACCEPTANCE
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The foregoing Management Agreement is hereby accepted.
▇▇▇▇▇▇▇ INVESTMENT COUNSEL, INC.
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
ATTEST:
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, CFO
Dated:
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