EXHIBIT 5(mm)
INVESTMENT ADVISORY AGREEMENT
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(Warburg Pincus Tax Free Fund)
AGREEMENT made as of March 31, 1995 between THE RBB
FUND, INC., a Maryland corporation (herein called the "Company"),
and Warburg, Xxxxxx Counsellors, Inc. (herein called the
"Investment Advisor").
WHEREAS, the Company is registered as an open-end,
management investment company under the Investment Company Act of
1940 (the "1940 Act"), of which the Warburg Pincus Tax Free Fund
(the "Fund") is a separate investment portfolio; and
WHEREAS, the Company desires to retain the Investment
Advisor to render certain investment advisory services to the
Company with respect to the Fund, and the Investment Advisor is
willing to so render such services,
NOW, THEREFORE, in consideration of the premises and
mutual covenants herein contained, and intending to be legally
bound hereby, it is agreed between the parties hereto as follows:
1. Appointment. The Company hereby appoints the
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Investment Advisor to act as investment advisor for the Fund for
the period and on the terms set forth in this Agreement. The
Investment Advisor accepts such appointment and agrees to render
the services herein set forth, for the compensation herein
provided.
2. Delivery of Documents. The Company has furnished
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the Investment Advisor with copies properly certified or
authenticated of each of the following:
(a) Resolutions of the Board of Directors of the
Company authorizing the appointment of the Investment Advisor and
the execution and delivery of this Agreement;
(b) The Prospectus and Statement of Additional
Information relating to the class of Shares representing
interests in the Fund of the Company in effect under the 1933 Act
(such prospectus and statement of additional information, as
presently in effect and as it shall from time to time be amended
and supplemented, is herein called the "Prospectus").
The Company will furnish the Investment Advisor from
time to time with copies, properly certified or authenticated, of
all amendments of or supplements to the foregoing, if any.
3. Management of the Fund. Subject to the
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supervision of the Board of Directors of the Company, the
Investment Advisor will provide for the overall management of the
Fund including (i) the provision of a continuous investment
program for the Fund, including investment research and
management with respect to all securities, investments, cash and
cash equivalents in the Fund, (ii) the determination from time to
time of what securities and other investments will be purchased,
retained, or sold by the Company for the Fund, and (iii) the
placement from time to time of orders for all purchases and sales
made for the Fund. The Investment Advisor will provide the
services rendered by it hereunder in accordance with the Fund's
investment objectives, restrictions and policies as stated in the
applicable Prospectus contained in the Registration Statement.
The Investment Advisor further agrees that it will render to the
Company's Board of Directors such periodic and special reports
regarding the performance of its duties under this Agreement as
the Board may request. The Investment Advisor agrees to provide
to the Company (or its agents and service providers) prompt and
accurate data with respect to the Fund's transactions and, where
not otherwise available, the daily valuation of securities in the
Fund.
4. Brokerage. The Investment Advisor may place
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orders either directly with the issuer or with any broker or
dealer. In placing orders with brokers and dealers, the
Investment Advisor will attempt to obtain the best price and the
most favorable execution of its orders. In placing orders, the
Investment Advisor will consider the experience and skill of the
firm's securities traders as well as the firm's financial
responsibility and administrative efficiency. Consistent with
this obligation, the Investment Advisor may, subject to the
review of the Board of Directors, select brokers on the basis of
the research, statistical and pricing services they provide to
the Fund and other clients of the Investment Advisor.
Information and research received from such brokers will be in
addition to, and not in lieu of, the services required to be
performed by the Investment Advisor hereunder. A commission paid
to such brokers may be higher than that which another qualified
broker would have charged for effecting the same transaction,
provided that the Investment Advisor determines in good faith
that such commission is reasonable in terms of either the
transaction or the overall responsibility of the Investment
Advisor to the Fund and its other clients and that the total
commissions paid by the Fund will be reasonable in relation to
the benefits to the Fund over the long-term. In no instance will
the Fund's securities be purchased from or sold to the Company's
principal underwriter, the Investment Advisor, or any affiliated
person thereof, except to the extent permitted by SEC exemptive
order or by applicable law.
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5. Conformity with Law; Confidentiality. The
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Investment Advisor further agrees that it will comply with all
applicable rules and regulations of all federal regulatory
agencies having jurisdiction over the Investment Advisor in the
performance of its duties hereunder. The Investment Advisor will
treat confidentially and as proprietary information of the
Company all records and other information relating to the Company
and prior, present or potential shareholders (except clients of
the Investment Advisor and its affiliates), and will not use such
records and information for any purpose other than performance of
its responsibilities and duties hereunder, except after prior
notification to and approval in writing by the Company, which
approval shall not be unreasonably withheld and may not be
withheld where the Investment Advisor may be exposed to civil or
criminal contempt proceedings for failure to comply, when
requested to divulge such information by duly constituted
authorities, or when so requested by the Company.
6. Services Not Exclusive. The investment management
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and services rendered by the Investment Advisor hereunder are not
to be deemed exclusive, and the Investment Advisor shall be free
to render similar services to others so long as its services
under this Agreement are not impaired thereby.
7. Books and Records. In compliance with the
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requirements of Rule 31a-3 under the 1940 Act, the Investment
Advisor hereby agrees that all records which it maintains for the
Fund are the property of the Company and further agrees to
surrender promptly to the Company any of such records upon the
Company's request. The Investment Advisor further agrees to
preserve for the periods prescribed by Rule 31a-2 under the 1940
Act the records required to be maintained by Rule 31a-1 under the
1940 Act.
8. Expenses. During the term of this Agreement, the
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Investment Advisor will pay all expenses incurred by it in
connection with its activities under this Agreement other than
the cost of securities purchased for the Fund (including
brokerage commissions, if any), the cost of independent pricing
services used in valuing the Fund's securities and fees and
expenses of registering and qualifying shares for distribution
under state securities laws.
If the expenses borne by the Fund in any fiscal year
exceed the most restrictive applicable expense limitations
imposed by the securities regulations of any state in which the
Shares of the Fund are registered or qualified for sale to the
public, the Investment Advisor shall reimburse the Fund for any
excess up to the amount of the fees payable by the Fund to it
during such fiscal year pursuant to Paragraph 9 hereof; provided,
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however, that notwithstanding the foregoing, the Investment
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Advisor shall reimburse the Fund for such excess expenses
regardless of the amount of such fees payable to it during such
fiscal year to the extent that the securities regulations of any
state in which the Shares are registered or qualified for sale so
require.
9. Compensation.
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(a) For the services provided and the expenses
assumed pursuant to this Agreement with respect to the Fund, the
Company will pay the Investment Advisor from the assets of the
Fund and the Investment Advisor will accept as full compensation
therefor a fee, computed daily and payable monthly, at the annual
rate of .50% of the Fund's average daily net assets.
(b) The fee attributable to the Fund shall be
satisfied only against assets of the Fund and not against the
assets of any other investment portfolio of the Company.
10. Limitation of Liability of the Investment Advisor.
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The Investment Advisor shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the
Company in connection with the matters to which this Agreement
relates, except a loss resulting from a breach of fiduciary duty
with respect to the receipt of compensation for services or a
loss resulting from willful misfeasance, bad faith or gross
negligence on the part of the Investment Advisor in the
performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement ("Disabling
Conduct"). The Fund will indemnify the Investment Advisor
against and hold it harmless from any and all losses, claims,
damages, liabilities or expenses (including reasonable counsel
fees and expenses) resulting from any claim, demand, action or
suit not resulting from Disabling Conduct by the Investment
Advisor. Indemnification shall be made only following: (i) a
final decision on the merits by a court or other body before whom
the proceeding was brought that the Investment Advisor was not
liable by reason of Disabling Conduct; or (ii) in the absence of
such a decision, a reasonable determination, based upon a review
of the facts, that the Investment Advisor was not liable by
reason of Disabling Conduct by (a) the vote of a majority of a
quorum of directors of the Fund who are neither "interested
persons" of the Fund nor parties to the proceeding
("Disinterested Non-Party Directors") or (b) an independent legal
counsel in a written opinion. The Investment Advisor shall be
entitled to advances from the Fund for payment of the reasonable
expenses incurred by it in connection with the matter as to which
it is seeking indemnification in the manner and to the fullest
extent permissible under the Maryland General Corporation Law.
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The Investment Advisor shall provide to the Fund a written
affirmation of its good faith belief that the standard of conduct
necessary for indemnification by the Fund has been met and a
written undertaking to repay any such advance if it should
ultimately be determined that the standard of conduct has not
been met. In addition, at least one of the following additional
conditions shall be met: (a) the Investment Advisor shall provide
a security in form and amount acceptable to the Fund for its
undertaking; (b) the Fund is insured against losses arising by
reason of the advance; or (c) a majority of a quorum of
Disinterested Non-Party Directors, or independent legal counsel,
in a written opinion, shall have determined, based upon a review
of facts readily available to the Fund at the time the advance is
proposed to be made, that there is reason to believe that the
Investment Advisor will ultimately be found to be entitled to
indemnification. Any amounts payable by the Fund under this
Section shall be satisfied only against the assets of the Fund
and not against the assets of any other investment portfolio of
the Company.
11. Duration and Termination. This Agreement shall
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become effective with respect to the Fund on the day after
approval of this Agreement by vote of a majority of the
outstanding voting securities of the Fund and, unless sooner
terminated as provided herein, shall continue with respect to the
Fund until August 16, 1995. Thereafter, if not terminated, this
Agreement shall continue with respect to the Fund for successive
annual periods ending on August 16, provided such continuance is
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specifically approved at least annually (a) by the vote of a
majority of those members of the Board of Directors of the
Company 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
Directors of the Company or by vote of a majority of the
outstanding voting securities of the Fund; provided, however,
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that this Agreement may be terminated with respect to the Fund by
the Company at any time, without the payment of any penalty, by
the Board of Directors of the Company or by vote of a majority of
the outstanding voting securities of the Fund, on 60 days' prior
written notice to the Investment Advisor, or by the Investment
Advisor at any time, without payment of any penalty, on 90 days'
prior written notice to the Company. This Agreement will
immediately terminate in the event of its assignment. (As used
in this Agreement, the terms "majority of the outstanding voting
securities," "interested person" and "assignment" shall have the
same meaning as such terms have in the 1940 Act).
12. Amendment of this Agreement. No provision of this
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Agreement may be changed, discharged or terminated orally, except
by an instrument in writing signed by the party against which
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enforcement of the change, discharge or termination is sought,
and no amendment of this Agreement affecting the Fund shall be
effective until approved by vote of the holders of a majority of
the outstanding voting securities of the Fund.
13. Miscellaneous. The captions in this Agreement are
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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 and construed and enforced in accordance
with the laws of the state of New York without giving effect to
the conflicts of laws principles thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as
of the day and year first above written.
THE RBB FUND, INC.
By: /s/Xxxxxx X. Xxxxx
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President
WARBURG, XXXXXX COUNSELLORS, INC.
By:/s/ Xxxxxx X. Xxxxx
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