MANAGEMENT AGREEMENT
AGREEMENT made as of the 17th day of April, 1995 by and between TCW/DW
Income and Growth Fund, an unincorporated business trust organized under the
laws of the Commonwealth of Massachusetts (hereinafter called the "Fund"), and
Xxxx Xxxxxx Services Company Inc., a Delaware corporation (hereinafter called
the "Manager");
WHEREAS, The Fund is engaged in business as an open-end management
investment company and is registered as such under the Investment Company Act of
1940, as amended (the "Act"); and
WHEREAS, The Fund desires to retain the Manager to render services in the
manner and on the terms and conditions hereinafter set forth; and
WHEREAS, The Manager desires to be retained to perform services on said
terms and conditions:
Now, Therefore, this Agreement
W I T N E S S E T H:
that in consideration of the premises and the mutual covenants hereinafter
contained, the Fund and the Manager agree as follows:
1. The Fund hereby retains the Manager to act as manager of the Fund and,
subject to the supervision of the Trustees, to supervise the business affairs of
the Fund as hereinafter set forth. Without limiting the generality of the
foregoing, the Manager shall (i) manage the Fund's business affairs and
supervise the overall day-to-day operations of the Fund (other than rendering
investment advice); (ii) provide the Fund with full administrative services,
including the maintenance of certain books and records, such as journals, ledger
accounts and other records required under the Act, the notification to the
Fund's investment adviser of available funds for investment, the reconciliation
of account information and balances among the Fund's custodian, transfer agent
and dividend disbursing agent and the Fund's investment adviser, and the
calculation of the net asset value of the Fund's shares; (iii) provide the Fund
with the services of persons competent to perform such supervisory,
administrative and clerical functions as are necessary to provide effective
operation of the Fund; (iv) oversee the performance of administrative and
professional services rendered to the Fund by others, including its custodian,
transfer agent and dividend disbursing agent, as well as accounting, auditing
and other services; (v) provide the Fund with adequate general office space and
facilities; and (vi) oversee the preparation and the printing of the periodic
updating of the Fund's registration statement and prospectus and statement of
additional information, tax returns, proxy statements, and reports to its
shareholders and the Securities and Exchange Commission.
2. The Manager shall, at its own expense, maintain such staff and employ
or retain such personnel and consult with such other persons as it shall from
time to time determine to be necessary or useful to the performance of its
obligations under this Agreement. Without limiting the generality of the
foregoing, the staff and personnel of the Manager shall be deemed to include
persons employed or otherwise retained by the Manager to furnish services,
statistical and other factual data, information with respect to technical and
scientific developments, and such other information, advice and assistance as
the Manager may desire. The Manager shall, as agent for the Fund, maintain the
Fund's records and books of account (other than those maintained by the Fund's
transfer agent, registrar, custodian and other agencies). All such books and
records so maintained shall be the property of the Fund and, upon request
therefor, the Manager shall surrender to the Fund such of the books and records
so requested.
3. The Fund will, from time to time, furnish or otherwise make available
to the Manager such financial reports, proxy statements and other information
relating to the business and affairs of the Fund as the Manager may reasonably
require in order to discharge its duties and obligations hereunder.
4. The Manager shall bear the cost of rendering the administrative
services to be performed by it under this Agreement, and shall, at its own
expense, pay the compensation of the Trustees, officers and employees, if
any, of the Fund who are also directors, officers or employees of the
Manager, and provide such office space, facilities and equipment and such
clerical help and bookkeeping services as the Fund
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shall reasonably require in the conduct of its business. The Manager shall
also bear the cost of telephone service, heat, light, power and other
utilities provided to the Fund.
5. The Fund assumes and shall pay or cause to be paid all other expenses
of the Fund (except expenses borne by the Fund's investment adviser pursuant to
an investment advisory agreement with the Fund), including without limitation:
fees pursuant to an investment advisory agreement into which the Fund may enter,
fees pursuant to any plan of distribution that the Fund may adopt; the charges
and expenses of any registrar, any custodian or depository appointed by the Fund
for the safekeeping of its cash, portfolio securities or commodities and other
property, and any stock transfer or dividend agent or agents appointed by the
Fund; brokers' commissions chargeable to the Fund in connection with portfolio
transactions to which the Fund is a party; all taxes, including securities or
commodities issuance and transfer taxes, and fees payable by the Fund to
federal, state or other governmental agencies; the cost and expense of engraving
or printing certificates representing shares of the Fund; all costs and expenses
in connection with the registration and maintenance of registration of the Fund
and its shares with the Securities and Exchange Commission and various states
and other jurisdictions (including filing fees and legal fees and disbursements
of counsel and the costs and expenses of preparing, printing, including
typesetting, and distributing prospectuses and statements of additional
information for such purposes); all expenses of shareholders' and Trustees'
meetings and of preparing, printing and mailing proxy statements and reports to
shareholders; fees and travel expenses of Trustees or members of any advisory
board or committee who are not employees of the Manager or the Fund's investment
adviser or any corporate affiliate of either of them; all expenses incident to
the payment of any dividend or distribution program; charges and expenses of any
outside service used for pricing of the Fund's shares; charges and expenses of
legal counsel, including counsel to the Trustees of the Fund who are not
interested persons (as defined in the Act) of the Fund or the Manager or the
Fund's investment adviser, and of independent accountants, in connection with
any matter relating to the Fund; membership dues of industry associations;
interest payable on Fund borrowings; postage; insurance premiums on property or
personnel (including officers and Trustees) of the Fund which inure to its
benefit; extraordinary expenses (including, but not limited to, legal claims and
liabilities and litigation costs and any indemnification related thereto); and
all other charges and costs of the Fund's operation unless otherwise explicitly
provided herein.
6. For the services to be rendered, the facilities furnished, and the
expenses assumed by the Manager, the Fund shall pay to the Manager monthly
compensation determined by applying the following annual rates to the Fund's
average daily net assets: 0.45% of daily net assets up to $500 million; and
0.42% of daily net assets over $500 million. Such calculation shall be made by
applying 1/365th of the annual rates to the Fund's net assets each day
determined as of the close of business on that day or the last previous business
day. If this Agreement becomes effective subsequent to the first day of a month
or shall terminate before the last day of a month, compensation for that part of
the month this Agreement is in effect shall be prorated in a manner consistent
with the calculation of the fees as set forth above.
7. In the event the operating expenses of the Fund, including amounts
payable to the Manager pursuant to paragraph 6 hereof, for any fiscal year
ending on a date on which this Agreement is in effect, exceed the expense
limitations applicable to the Fund imposed by state securities laws or
regulations thereunder, as such limitations may be raised or lowered from time
to time, the Manager shall reduce its management fee to the extent of 60% of
such excess and, if and to the extent required by law, pursuant to any such
laws or regulations, will reimburse the Fund for 60% of annual operating
expenses in excess of any expense limitation that may be applicable; provided,
however, there shall be excluded from such expenses the amount of any interest,
taxes, distribution fees, brokerage commissions and extraordinary expenses
(including but not limited to legal claims and liabilities and litigation costs
and any indemnification related thereto) paid or payable by the Fund. Such
reduction, if any, shall be computed and accrued weekly, shall be settled on a
monthly basis, and shall be based upon the expense limitation applicable to the
Fund as at the end of the last business day of the month. Should two or more
such expense limitations be applicable as at the end of the last full week of
the month, that expense limitation which results in the largest reduction in the
Manager's fee shall be applicable.
For purposes of this provision, should any applicable expense limitation be
based upon the gross income of the Fund, such gross income shall include, but
not be limited to, interest on debt securities in
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the Fund's portfolio accrued to and including the last day of the Fund's
fiscal year, and dividends declared on equity securities in the Fund's
portfolio, the record dates for which fall on or prior to the last day of
such fiscal year, but shall not include gains from the sale of securities.
8. The Manager will use its best efforts in the management of the Fund,
but in the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of its obligations hereunder, the Manager shall not be liable
to the fund or any of its investors for any error of judgment or mistake of law
or for any act or omission by the Manager or for any losses sustained by the
Fund or its investors. The Manager shall be indemnified by the Fund as an agent
of the Fund in accordance with the terms of Section 4.8 of the Fund's By-laws.
9. Nothing contained in this Agreement shall prevent the Manager or any
affiliated person of the Manager from acting as manager for any other person,
firm or corporation. Nothing in this Agreement shall limit or restrict the right
of any Trustee, officer or employee of the Manager to engage in any other
business or to devote his or her time and attention in part to the management or
other aspects of any other business whether of a similar or dissimilar nature.
10. This Agreement shall remain in effect until April 30, 1995 and from
year to year thereafter provided such continuance is approved at least annually
by the Board of Trustees of the Fund; provided that such continuance is also
approved annually by a vote of a majority of the Trustees of the Fund who are
not parties to this Agreement of "interested persons" (as defined in the Act) of
any such party; provided, however, that the Fund, acting by majority vote of the
Trustees, or the Manager may, at any time and without the payment of any
penalty, terminate this Agreement upon thirty days' written notice to the other
party. Any notice under this Agreement shall be given in writing, addressed and
delivered, or mailed post-paid, to the other party at the principal office of
such party.
11. This Agreement may be amended or modified by the parties by a written
agreement executed by both parties and authorized or approved by a resolution of
the Board of Trustees of the Fund.
12. This Agreement may be assigned by either party with the written
consent of the other party.
13. This Agreement shall be construed in accordance with the laws of the
State of New York and the applicable provisions of the Act. To the extent the
applicable law of the State of New York, or any of the provisions herein,
conflicts with the applicable provisions of the Act, the latter shall control.
14. The Fund acknowledges that the Manager owns its own name, initials and
logo. The Fund agrees to change its name at the request of the Manager if this
Agreement is terminated for any reason.
15. The Declaration of Trust establishing TCW/DW Income and Growth
Fund, dated November 20, 1992, a copy of which, together with all amendments
thereto (the "Declaration"), is on file in the office of the Secretary of the
Commonwealth of Massachusetts, provides that the name TCW/DW Income and
Growth Fund refers to the Trustees under the Declaration collectively as
Trustees, but not as individuals or personally; and no Trustee, shareholder,
officer, employee or agent of TCW/DW Income and Growth Fund shall be held to
any personal liability, nor shall resort be had to their private property for
the satisfaction of any obligation or claim or otherwise, in connection with the
affairs of said TCW/DW Income and Growth Fund, but the Trust Estate only
shall be liable.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the day and year first above written in New York, New York.
TCW/DW INCOME AND GROWTH FUND
By_____________________________________
Attest:
______________________
XXXX XXXXXX SERVICES COMPANY INC.
By______________________________________
Attest:
______________________
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