EX-23.D
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of March 8, 2001 by and between INTERNATIONAL EQUITY
PORTFOLIO, a New York trust (herein called the "Trust") and DEUTSCHE ASSET
MANAGEMENT, INC. (herein called the "Investment Adviser").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Trust desires to retain the Investment Adviser to render
investment advisory and other services to the Trust, and the Investment Adviser
is willing to so render such services on the terms hereinafter set forth;
NOW, THEREFORE, this Agreement
W I T N E S S E T H:
In consideration of the promises and mutual covenants herein contained,
it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Trust hereby appoints the Investment Adviser to act
as investment adviser to the Trust for the period and on the terms set forth in
this Agreement. The Investment Adviser accepts such appointment and agrees to
render the services herein set forth for the compensation herein provided.
2. MANAGEMENT. Subject to the supervision of the Board of Trustees of
the Trust, the Investment Adviser will provide a continuous investment program
for the Trust, including investment research and management with respect to all
securities, investments, cash and cash equivalents in the Trust. The Investment
Adviser will determine from time to time what securities and other investments
will be purchased, retained or sold by the Trust. The Investment Adviser will
provide the services rendered by it hereunder in accordance with the investment
objective(s) and policies of the Trust as stated in the Trust's then-current
prospectus and statement of additional information (or the Trust's then current
registration statement on Form N-1A as filed with the Securities and Exchange
Commission (the "SEC") and the then-current offering memorandum if the Trust is
not registered under the Securities Act of 1933, as amended ("1933 Act"). The
Investment Adviser further agrees that it:
(a) will conform with all applicable rules and regulations of
the SEC (herein called the "Rules") and with all applicable provisions of the
1933 Act; as amended, the Securities Exchange Act of 1934, as amended (the "1934
Act"), the 1940 Act; and the Investment Advisers Act of 1940, as amended (the
"Advisers Act");
(b) will place orders pursuant to its investment
determinations for the Trust either directly with the issuer or with any broker
or dealer selected by it. In placing orders with brokers and dealers, the
Investment Adviser will use its reasonable best efforts to obtain the best net
price and the most favorable execution of its orders, after taking into account
all factors it deems relevant, including the 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 the commission, if
any, both for the specific transaction and on a continuing basis. Consistent
with this obligation, the Investment Adviser may, to the extent permitted by
law, purchase and sell portfolio securities to and from brokers and dealers who
provide brokerage and research services (within the meaning of Section 28(e) of
the 0000 Xxx) to or for the benefit of any fund and/or other accounts over which
the Investment Adviser or any of its affiliates exercises investment discretion.
Subject to the review of the Trust's Board of Trustees from time to time with
respect to the extent and continuation of the policy, the Investment Adviser is
authorized to pay to a broker or dealer who provides such brokerage and research
services a commission for effecting a securities transaction which is in excess
of the
amount of commission another broker or dealer would have charged for effecting
that transaction if the Investment Adviser determines in good faith that such
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer, viewed in terms of either that
particular transaction or the overall responsibilities of the Investment Adviser
with respect to the accounts as to which it exercises investment discretion; and
(c) will maintain books and records with respect to the
securities transactions of the Trust and will render to the Trust's Board of
Trustees such periodic and special reports as the Board may request.
3. SERVICES NOT EXCLUSIVE. The investment advisory services rendered by
the Investment Adviser hereunder are not to be deemed exclusive, and the
Investment Adviser shall be free to render similar services to others so long as
its services under this Agreement are not impaired thereby.
4. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3
of the Rules under the 1940 Act, the Investment Adviser hereby agrees that all
records which it maintains for the Trust are the property of the Trust and
further agrees to surrender promptly to the Trust any of such records upon
request of the Trust. The Investment 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 comply in full with the
requirements of Rule 204-2 under the Advisers Act pertaining to the maintenance
of books and records.
5. EXPENSES. During the term of this Agreement, the Investment Adviser
will pay all expenses incurred by it in connection with its activities under
this Agreement other than the cost of purchasing securities (including brokerage
commissions, if any) for the Trust.
6. COMPENSATION. For the services provided and the expenses assumed
pursuant to this Agreement, the Trust will pay the Investment Adviser, and the
Investment Adviser will accept as full compensation therefor, fees, computed
daily and payable monthly, an amount equal to the rate of 0.65% of the Trust's
average daily net assets.
7. LIMITATION OF LIABILITY OF THE INVESTMENT ADVISER: INDEMNIFICATION.
(a) The Investment Adviser shall not be liable for any error
of judgment or mistake of law or for any loss suffered by the Trust 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 Adviser in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement;
(b) Subject to the exceptions and limitations contained in
Section 7(c) below:
(i) the Investment Adviser (hereinafter referred to
as a "Covered Person") shall be indemnified by the Trust to the fullest extent
permitted by law, against liability and against all expenses reasonably incurred
or paid by him in connection with any claim, action, suit or proceeding in which
he becomes involved, as a party or otherwise, by virtue of his being or having
been the Investment Adviser of the Trust, and against amounts paid or incurred
by him in the settlement thereof;
(ii) the words "claim," "action," "suit," or
"proceeding" shall apply to all claims, actions, suits or proceedings (civil,
criminal or other, including appeals), actual or threatened while in office or
thereafter, and the words "liability" and "expenses" shall include, without
limitation, attorneys' fees, costs, judgments, amounts paid in settlement,
fines, penalties and other liabilities.
(c) No indemnification shall be provided hereunder to a
Covered Person:
(i) who shall have been adjudicated by a court or
body before which the proceeding was brought (A) to be liable to the Trust or to
one or more of the Trust's investors by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his office, or (B) not to have
acted in good faith in the reasonable belief that his action was in the best
interest of the Trust; or
(ii) in the event of a settlement, unless there has
been a determination that such Covered Person did not engage in willful
misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his office;
(A) by the court or other body approving the
settlement; or
(B) by at least a majority of those Trustees who are
neither Interested Persons of the Trust nor are parties to the matter based upon
a review of readily available facts (as opposed to a full trial-type inquiry);
or
(C) by written opinion of independent legal counsel
based upon a review of readily available facts (as opposed to a full trial-type
inquiry); provided, however, that any investor in the Trust may, by appropriate
legal proceedings, challenge any such determination by the Trustees or by
independent counsel.
(d) The rights of indemnification herein provided may be
insured against by policies maintained by the Trust, shall be severable, shall
not be exclusive of or affect any other rights to which any Covered Person may
now or hereafter be entitled, shall continue as to a person who has ceased to be
a Covered Person and shall inure to the benefit of the successors and assigns of
such person. Nothing contained herein shall affect any rights to indemnification
to which Trust personnel and any other persons, other than a Covered Person, may
be entitled by contract or otherwise under law.
(e) Expenses in connection with the preparation and
presentation of a defense to any claim, suit or proceeding of the character
described in subsection (b) of this Section 7 may be paid by the Trust from time
to time prior to final disposition thereto upon receipt of an undertaking by or
on behalf of such Covered Person that such amount will be paid over by him to
the Trust if it is ultimately determined that he is not entitled to
indemnification under this Section 7; provided, however, that either (i) such
Covered Person shall have provided appropriate security for such undertaking or
(ii) the Trust shall be insured against losses arising out of any such advance
payments, or (iii) either a majority of the Trustees who are neither Interested
Persons of the Trust nor parties to the matter, or independent legal counsel in
a written opinion, shall have determined, based upon a review of readily
available facts as opposed to a trial-type inquiry or full investigation, that
there is reason to believe that such Covered Person will be entitled to
indemnification under this Section 7.
8. DURATION AND TERMINATION. This Agreement shall be effective as of
the date the Trust commences investment operations after this Agreement shall
have been approved by the Board of Trustees of the Trust and the Investor(s) in
the Trust in the manner contemplated by Section 15 of the 1940 Act and, unless
sooner terminated as provided herein, shall continue until the second
anniversary of such date. Thereafter, if not terminated, this Agreement shall
continue in effect for successive periods of 12 months each, provided such
continuance is specifically approved at least annually (a) by the vote of a
majority of those members of the Board of Trustees of the Trust 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, or (b) by
Vote of a Majority of the Outstanding Voting Securities of the Trust; provided,
however, that this Agreement may be terminated by the Trust at any time, without
the payment of any penalty, by the Board of Trustees of the Trust, by Vote of a
Majority of the Outstanding Voting Securities of the Trust on 60 days' written
notice to the Investment Adviser, or by the Investment Adviser as to the Trust
at any time, without payment of any penalty, on 90 days' written notice to the
Trust. This Agreement will immediately terminate in the event of its assignment
(as used in this Agreement, the terms "Vote of a Majority of the Outstanding
Voting Securities," "Interested Person" and "Assignment' shall have the same
meanings as such terms have in the 1940 Act and the rules and regulatory
constructions thereunder.)
9. AMENDMENT OF THIS AGREEMENT. No material term of this Agreement may
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought, and no amendment of a material term of this
Agreement shall be effective until approved by Vote of a Majority of the
Outstanding Voting Securities of the Trust.
10. REPRESENTATIONS AND WARRANTIES. The Investment Adviser hereby
represents and warrants as follows:
(a) The Investment Adviser is registered as an investment
adviser under the 1940 Act:
(b) The Investment Adviser has all requisite authority to
enter into, execute, deliver and perform its obligations under this Agreement;
(c) This Agreement is legal, valid and binding, and
enforceable in accordance with its terms; and
(d) The performance by the Investment Adviser of its
obligations under this Agreement does not conflict with any law to which it is
subject.
11. COVENANTS. The Investment Adviser hereby covenants and agrees that,
so long as this Agreement shall remain in effect:
(a) The Investment Adviser shall remain either exempt from, or
registered under, the registration provisions of the Advisers Act; and
(b) The performance by the Investment Adviser of its
obligations under this Agreement shall not conflict with any law to which it is
then subject.
12. NOTICES. Any notice required to be given pursuant to this Agreement
shall be deemed duly given if delivered or mailed by registered mail, postage
prepaid, (a) to the Investment Adviser, Mutual Funds Services, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or (b) to the Trust, c/o Deutsche Asset
Management, Xxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
13. WAIVER. With full knowledge of the circumstances and the effect of
its action, the Investment Adviser hereby waives any and all rights which it may
acquire in the future against the property of any investor in the Trust, other
than shares in the Trust, which arise out of any action or inaction of the Trust
under this Agreement.
14. MISCELLANEOUS. 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 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 the
laws of the State of New York, without reference to principles of conflicts of
law. The Trust is organized under the laws of the State of New York pursuant to
a Declaration of Trust dated December 11, 1991. No Trustee, officer or employee
of the Trust shall be personally bound by or liable hereunder, nor shall resort
be had to their private property for the satisfaction of any obligation or claim
hereunder.
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.
INTERNATIONAL EQUITY PORTFOLIO
By: /S/XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Secretary
DEUTSCHE ASSET MANAGEMENT, INC.
By: /S/XXXXXXX X. XXXX
Name: Xxxxxxx X. Xxxx
Title: Vice President
