EXHIBIT 99.d
INVESTMENT ADVISORY AGREEMENT
October 26, 1998
BEA Associates
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Warburg, Xxxxxx U.S. Core Fixed Income Fund, Inc. (the "Fund"), a
corporation organized and existing under the laws of the State of Maryland,
herewith confirms its agreement with BEA Associates (the "Adviser"), a
partnership organized under the laws of New York, as follows:
1. INVESTMENT DESCRIPTION; APPOINTMENT
The Fund desires to employ the capital of the Fund by investing and
reinvesting in investments of the kind and in accordance with the limitations
specified in its Articles of Incorporation, as may be amended from time to time,
and in the Fund's Prospectus(es) and Statement(s) of Additional Information as
from time to time in effect (the "Prospectus" and "SAI," respectively), and in
such manner and to such extent as may from time to time be approved by the Board
of Directors of the Fund. Copies of the Fund's Prospectus and SAI have been or
will be submitted to the Adviser. The Fund desires to employ and hereby appoints
the Adviser to act as investment adviser to the Fund. The Adviser accepts the
appointment and agrees to furnish the services for the compensation set forth
below.
2. SERVICES AS INVESTMENT ADVISER
Subject to the supervision and direction of the Board of Directors of
the Fund, the Adviser will (a) act in strict conformity with the Fund's Articles
of Incorporation, the Investment Company Act of 1940 (the "1940 Act") and the
Investment Advisers Act of 1940, as the same may from time to time be amended
(the "Advisers Act"), (b) manage the Fund's assets in accordance with the Fund's
investment objective and policies as stated in the Fund's Prospectus and SAI,
(c) make investment decisions for the Fund, (d) place purchase and sale orders
for securities on behalf of the Fund, (e) exercise voting rights in respect of
portfolio securities and other investments for the Fund, and (f) monitor and
evaluate the services provided by the Fund's investment sub-adviser(s), if any,
under the terms of the applicable investment sub-advisory agreement. In
providing those services, the Adviser will provide investment research and
supervision of the Fund's investments and conduct a continual program of
investment, evaluation and, if appropriate, sale and reinvestment of the Fund's
assets. In addition, the
Adviser will furnish the Fund with whatever statistical information the Fund may
reasonably request with respect to the securities that the Fund may hold or
contemplate purchasing.
Subject to the approval of the Board of Directors of the Fund and,
where required by law, the Fund's shareholders, the Adviser may engage an
investment sub-adviser or sub-advisers to provide advisory services in respect
of the Fund and may delegate to such investment sub-adviser(s) the
responsibilities described in subparagraphs (b), (c), (d) and (e) above. In the
event that an investment sub-adviser's engagement has been terminated, the
Adviser shall be responsible for furnishing the Fund with the services required
to be performed by such investment sub-adviser(s) under the applicable
investment sub-advisory agreement(s) or arranging for a successor investment
sub-adviser(s) to provide such services on terms and conditions acceptable to
the Fund and the Fund's Board of Directors and subject to the requirements of
the 1940 Act.
3. BROKERAGE
In executing transactions for the Fund, selecting brokers or dealers
and negotiating any brokerage commission rates, the Adviser will use its best
efforts to seek the best overall terms available. In assessing the best overall
terms available for any portfolio transaction, the Adviser will consider all
factors it deems relevant including, but not limited to, breadth of the market
in the security, the price of the security, the financial condition and
execution capability of the broker or dealer and the reasonableness of any
commission for the specific transaction and for transactions executed through
the broker or dealer in the aggregate. In selecting brokers or dealers to
execute a particular transaction and in evaluating the best overall terms
available, the Adviser may consider the brokerage and research services (as
those terms are defined in Section 28(e) of the Securities Exchange Act of 1934,
as the same may from time to time be amended) provided to the Fund and/or other
accounts over which the Adviser or an affiliate exercises investment discretion.
4. INFORMATION PROVIDED TO THE FUND
The Adviser will keep the Fund informed of developments materially
affecting the Fund, and will, on its own initiative, furnish the Fund from time
to time with whatever information the Adviser believes is appropriate for this
purpose.
5. DISCLOSURE REGARDING THE ADVISER
(a) The Adviser has reviewed the disclosure about the Adviser
contained in the Fund's registration statement and represents and warrants that,
with respect to such disclosure about the Adviser or information related,
directly or
2
indirectly, to the Adviser, such registration statement contains, as of the date
hereof, no untrue statement of any material fact and does not omit any statement
of a material fact which is required to be stated therein or necessary to make
the statements contained therein not misleading.
(b) The Adviser agrees to notify the Fund promptly of (i) any
statement about the Adviser contained in the Fund's registration statement that
becomes untrue in any material respect, (ii) any omission of a material fact
about the Adviser in the Fund's registration statement which is required to be
stated therein or necessary to make the statements contained therein not
misleading, (iii) any reorganization or change in the Adviser, including any
change in its ownership or key employees, or (iv) any change in the membership
of the Adviser, as long as the Adviser is a partnership.
(c) Prior to the Fund or any affiliated person (as defined in the
1940 Act, an "Affiliate") of the Fund using or distributing sales literature or
other promotional material referring to the Adviser ("Promotional Material"),
the Fund shall forward such material to the Adviser and shall allow the Adviser
reasonable time to review the material. The Adviser will not act unreasonably in
its review of Promotional Material and the Fund will use all reasonable efforts
to ensure that all Promotional Material used or distributed by or on behalf of
the Fund will comply with the requirements of the Advisers Act, the 1940 Act and
the rules and regulations promulgated thereunder.
(d) The Adviser has supplied the Fund copies of its Form ADV with all
exhibits and attachments thereto and will hereinafter supply the Fund, promptly
upon preparation thereof, copies of all amendments or restatements of such
document.
6. COMPLIANCE
(a) The Adviser agrees that it shall promptly notify the Fund (i) in
the event that the SEC or any other regulatory authority has censured its
activities, functions or operations; suspended or revoked its registration as an
investment adviser; or has commenced proceedings or an investigation that may
result in any of these actions, (ii) in the event that there is a change in the
Adviser, financial or otherwise, that adversely affects its ability to perform
services under this Agreement or (iii) upon having a reasonable basis for
believing that, as a result of the Adviser's investing the Fund's assets, the
Fund's investment portfolio has ceased to adhere to the Fund's investment
objectives, policies and restrictions as stated in
3
the Prospectus or SAI or is otherwise in violation of applicable law.
(b) The Fund agrees that it shall promptly notify the Adviser in the
event that the SEC has censured the Fund; placed limitations upon any of its
activities, functions or operations; or has commenced proceedings or an
investigation that may result in any of these actions.
(c) The Fund shall be given access to the records of the Adviser at
reasonable times solely for the purpose of monitoring compliance with the terms
of this Agreement and the rules and regulations applicable to the Adviser
relating to its providing investment advisory services to the Fund, including
without limitation records relating to trading by employees of the Adviser for
their own accounts and on behalf of other clients. The Adviser agrees to
cooperate with the Fund and its representatives in connection with any such
monitoring efforts.
7. BOOKS AND RECORDS
(a) In compliance with the requirements of Rule 31a-3 under the 1940
Act, the Adviser hereby agrees that all records which it maintains for the Fund
are the property of the Fund and further agrees to surrender promptly to the
Fund any of such records upon request. The Adviser 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 and to preserve the records
required by Rule 204-2 under the Advisers Act for the period specified therein.
(b) The Adviser agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Fund all records and other
information relative to the Fund and prior, present or potential shareholders
and not to 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 of the Fund, which approval shall not be
unreasonably withheld and may not be withheld where the Adviser may be exposed
to civil or criminal contempt proceedings for failure to comply or when
requested to divulge such information by duly constituted authorities.
(c) The Adviser hereby agrees to furnish to regulatory authorities
having the requisite authority any information or reports in connection with
services that the Adviser renders pursuant to this Agreement which may be
requested in order to ascertain whether the operations of the
4
Fund are being conducted in a manner consistent with applicable laws and
regulations.
8. STANDARD OF CARE
The Adviser shall exercise its best judgment in rendering the services
listed in paragraphs 2, 3 and 4 above. The Adviser shall not be liable for any
error of judgment or mistake of law or for any loss suffered by the Fund in
connection with the matters to which this Agreement relates, provided that
nothing herein shall be deemed to protect or purport to protect the Adviser
against any liability to the Fund or to shareholders of the Fund to which the
Adviser would otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence on its part in the performance of its duties or by reason of
the Adviser's reckless disregard of its obligations and duties under this
Agreement.
9. COMPENSATION
In consideration of the services rendered pursuant to this Agreement,
the Fund will pay the Adviser an annual fee calculated at an annual rate of
..375% of the Fund's average daily net assets. The fee for the period from the
date the Fund's initial registration statement is declared effective by the
Securities and Exchange Commission to the end of the year during which the
initial registration statement is declared effective shall be prorated according
to the proportion that such period bears to the full yearly period. Upon any
termination of this Agreement before the end of a year, the fee for such part of
that year shall be prorated according to the proportion that such period bears
to the full yearly period and shall be payable upon the date of termination of
this Agreement. For the purpose of determining fees payable to the Adviser, the
value of the Fund's net assets shall be computed at the times and in the manner
specified in the Fund's Prospectus or SAI.
10. EXPENSES
The Adviser will bear all expenses in connection with the performance
of its services under this Agreement, including the fees payable to any
investment sub-adviser engaged pursuant to paragraph 2 of this Agreement. The
Fund will bear its proportionate share of certain other expenses to be incurred
in its operation, including: investment advisory and administration fees; taxes,
interest, brokerage fees and commissions, if any; fees of Directors of the Fund
who are not officers, directors, or employees of the Adviser or any of its
affiliates; fees of any pricing service employed to value shares of the Fund;
Securities and Exchange Commission fees and state blue sky qualification fees;
charges of custodians and transfer and dividend disbursing agents; the Fund's
proportionate share of insurance premiums; outside auditing and legal expenses;
costs of maintenance of the
5
Fund's existence; costs attributable to investor services, including, without
limitation, telephone and personnel expenses; costs of preparing and printing
prospectuses and statements of additional information for regulatory purposes
and for distribution to existing shareholders; costs of shareholders' reports
and meetings of the shareholders of the Fund and of the officers or Board of
Directors of the Fund; and any extraordinary expenses.
The Fund will be responsible for nonrecurring expenses which may
arise, including costs of litigation to which the Fund is a party and of
indemnifying officers and Directors of the Fund with respect to such litigation
and other expenses as determined by the Directors.
11. SERVICES TO OTHER COMPANIES OR ACCOUNTS
The Fund understands that the Adviser now acts, will continue to act
and may act in the future as investment adviser to fiduciary and other managed
accounts and to one or more other investment companies or series of investment
companies, and the Fund has no objection to the Adviser so acting, provided that
whenever the Fund and one or more other accounts or investment companies or
portfolios advised by the Adviser have available funds for investment,
investments suitable and appropriate for each will be allocated in accordance
with a formula believed to be equitable to each entity. The Fund recognizes that
in some cases this procedure may adversely affect the size of the position
obtainable for the Fund. In addition, the Fund understands that the persons
employed by the Adviser to assist in the performance of the Adviser's duties
hereunder will not devote their full time to such service and nothing contained
herein shall be deemed to limit or restrict the right of the Adviser or any
affiliate of the Adviser to engage in and devote time and attention to other
businesses or to render services of whatever kind or nature, provided that doing
so does not adversely affect the ability of the Adviser to perform its services
under this Agreement.
12. TERM OF AGREEMENT
This Agreement shall continue until April 17, 2000 and thereafter
shall continue automatically for successive annual periods, provided such
continuance is specifically approved at least annually by (a) the Board of
Directors of the Fund or (b) a vote of a "majority" (as defined in the 0000 Xxx)
of the Fund's outstanding voting securities, provided that in either event the
continuance is also approved by a majority of the Board of Directors who are not
"interested persons" (as defined in said Act) of any party to this Agreement, by
vote cast in person at a meeting called for the purpose of voting on such
approval. This Agreement is terminable, without penalty, on 60 days' written
notice, by the Board of Directors of the Fund or by vote of holders of a
majority of the Fund's shares, or upon 90 days'
6
written notice, by the Adviser. This Agreement will also terminate automatically
in the event of its assignment (as defined in said Act).
13. REPRESENTATIONS BY THE PARTIES
(a) The Adviser represents and warrants that it is a duly registered
investment adviser under the Advisers Act, a duly registered investment adviser
in any and all states of the United States in which the Adviser is required to
be so registered and has obtained all necessary licenses and approvals in order
to perform the services provided in this Agreement. The Adviser covenants to
maintain all necessary registrations, licenses and approvals in effect during
the term of this Agreement.
(b) The Adviser represents that it has read and understands the
Prospectus and SAI and warrants that in investing the Fund's assets it will use
all reasonable efforts to adhere to the Fund's investment objectives, policies
and restrictions contained therein.
(c) The Adviser represents that it has adopted a written Code of
Ethics in compliance with Rule 17j-1 under the 1940 Act and will provide the
Fund with any amendments to such Code.
(d) The Fund represents that a copy of its Articles of Incorporation,
dated July 30, 1998, together with all amendments thereto, is on file in the
Department of Assessments and Taxation of the State of Maryland.
14. MISCELLANEOUS
The Adviser represents that it is the sole owner of the name and xxxx
"XXX," as used with respect to investment vehicles or services. The Adviser
hereby grants to the Fund and its affiliates a non-exclusive license to use the
"BEA" name and xxxx in connection with the Fund, including, without limitation,
use of the "BEA" name and xxxx in any disclosure document, advertisement, sales
literature or other materials describing or promoting the Fund. If the Adviser
ceases to act as the investment adviser of the Fund's shares, the Fund agrees
that, at the Adviser's request, the Fund's license to use the "BEA" name and
xxxx will terminate and the Fund will take all necessary action to discontinue
any use of the "BEA" name and xxxx. The Adviser acknowledges that the Fund has
adopted the name "BEA Institutional Funds," in connection with the offering of
the Fund's Institutional Shares, with its express permission.
7
The Adviser agrees that it will not use the name and xxxx "Xxxxxxx
Xxxxxx" except in regulatory filings or as expressly permitted by the Fund in
writing.
8
Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place below indicated,
whereupon it shall become a binding agreement between us.
Very truly yours,
WARBURG, XXXXXX U.S. CORE
FIXED INCOME FUND, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President &
Secretary
Accepted:
BEA ASSOCIATES
By: /s/ Xxx Xxxxxx
--------------
Name: Xxx Xxxxxx
Title: General Counsel
9
