Exhibit 5(d)
Re: Sub-Advisory Agreement for Xxxxx High Income Fund, Inc.
This is to confirm that Xxxxx Selected Advisers, L.P. (the "Adviser") is
retaining Xxxxx Selected Advisers - NY, Inc. ("DSA-NY") as investment
sub-adviser for the portfolio of Xxxxx High Income Fund, Inc. (the "Fund").
The terms and conditions of your retention are as follows:
1. DSA-NY shall act as an investment sub-adviser for the Fund and will provide
such investment management and research services as the Adviser shall request
subject to the general supervision of the Board of Directors of the Fund, Xxxxx
Selected Advisers, L.P. (the "Adviser") and to any applicable provisions as in
effect from time to time of (a) the Articles of Incorporation and Bylaws of the
Fund, (b) the prospectus, statement of additional information and other
information set forth in the Fund's registration documents under the Securities
Act of 1933 and the Investment Company Act of 1940 ("1940 Act"), including any
supplements thereto, (c) the Investment Advisory Agreement between the Adviser
and the Fund (the "Investment Advisory Agreement"), the Adviser's and the Fund's
Code of Ethics and (d) any additional policies or guidelines established by the
Fund's Board of Directors or the Adviser. DSA-NY acknowledges receipt of copies
of the above documents as in effect on the date of acceptance of this letter.
The Adviser agrees that it will promptly deliver to DSA-NY any amendments,
changes or additions of or to these documents.
2. DSA-NY agrees that all securities transactions will conform to (a) the stated
objectives and policies of the Fund, (b) the brokerage policies set forth in the
Investment Advisory Agreement (which are hereby incorporated by reference
herein) and the registration documents, and (c) those investment and brokerage
policies or guidelines directed by the Board of Directors of the Fund, any
committee thereof and the Adviser.
3. DSA-NY shall be an independent contractor. Unless otherwise expressly
provided or authorized hereunder, or by the Board of Directors of the Fund, DSA-
NY shall have no authority to represent the Fund or the Adviser in any way or
otherwise be an agent of the Adviser or the Fund, except with regard to the
execution of securities transactions on behalf of the Fund with registered
broker/dealers, including broker/dealers affiliated with the Adviser, provided
transactions with affiliated broker/dealers comply with Rule 17e-1 of the 0000
Xxx.
4. DSA-NY shall provide the Adviser with any reports, analyses or other
documentation the Adviser requests including those related to placement of
security transactions, its administrative responsibilities and its
responsibility to monitor compliance with stated investment objectives, policies
and limitations and the investment performance of the
Fund. DSA-NY agrees, directly or through an agent, to provide daily information
in respect to any portfolio transactions of the Fund to the Adviser. DSA-NY
agrees to provide all documentation reasonably required by the Adviser to
maintain the Fund's accounting records in accordance with the 1940 Act and the
Investment Advisers Act of 1940 and the regulations issued thereunder, and to
preserve copies of all documents and records related to asset transactions,
positions and valuations related to the Fund in the manner and for the periods
prescribed by such regulations. DSA-NY further agrees that all documents and
records it maintains relating to the Fund, are the property of the Fund and will
be surrendered to the Adviser or the Fund upon the request of either. DSA-NY
agrees to provide information and to allow inspection of such documents and
records at reasonable times by any authorized representative of the Adviser, the
Fund's Board of Directors or any committee thereof, the Fund's independent
public accountants or appropriate regulatory authorities. DSA-NY shall provide
to the Adviser a copy of its Form ADV as filed with the SEC and as amended from
time to time and a written list of persons DSA-NY has authorized to give written
and/or oral instructions to the Adviser and the Fund custodian.
5. DSA-NY agrees to make its personnel who are engaged in activities on behalf
of the Fund available at reasonable times for consultations with the Adviser's
personnel and the Fund's Board of Directors or any committee thereof, including
attendance at their meetings, wherever situated. In addition, personnel of DSA-
NY, at the request of the Adviser, will attend other meetings to be scheduled at
mutually convenient times.
6. DSA-NY agrees to provide all office facilities, equipment and personnel
needed for carrying out its duties hereunder at its own expense. In addition,
DSA-NY shall, if requested by the Adviser or the Fund, employ at its own expense
and subject to the prior written approval of the Adviser which approval shall
not be unreasonably withheld (i) a public auditing firm, (ii) attorneys and
(iii) such other professional staff as in the sole discretion of the Adviser are
necessary to assure the fulfillment of the terms and conditions of this
agreement.
7. It is agreed that DSA-NY's services are not to be deemed exclusive and DSA-NY
shall be free to render similar services or other services to others provided
that (i) its services hereunder are not impaired and are not in violation of
federal or state securities laws and (ii) that it shall not provide services to
any registered investment company other than the Fund or other investment
companies managed by the Adviser without the Adviser's prior express written
permission.
8. In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of its obligations or duties hereunder, DSA-NY, its officers,
directors and employees shall not be subject to liability for any act or
omission in the cause of, or connected with, rendering services hereunder or for
any losses that may be sustained in the purchase, holding or sale of any
security. In the event of any claim, arbitration, suit, or
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administrative proceedings in which DSA-NY or the Adviser is a party and in
which it is finally determined that there is liability or wrongdoing by only one
of us, the party liable or found to be the wrongdoer shall pay for all liability
and expenses of such claim or proceeding including reasonable attorneys' fees.
If it is determined that there is liability or wrongdoing by both or none of us,
then each shall pay their own liability and expenses. In the event of any
settlement of any such claim, arbitration, suit or proceeding before final
determination by a court or arbitrator(s), the liability and expenses shall be
assumed as agreed between the parties, but if there is no agreement within
thirty (30) days of such settlement, then the assumption of liability and
expenses shall be settled by arbitration, in accordance with the then applicable
rules of the American Arbitration Association. Judgment upon the award rendered
by the arbitrator shall be final and binding and may be entered in any court
having jurisdiction. The parties shall pay for their own costs and expenses in
respect to any such arbitration and such costs may be included in the
arbitrator's award.
9. As investment sub-adviser, DSA-NY understands that it will be responsible for
complying with all provisions of applicable law, including the 1940 Act, the
Investment Advisers Act of 1940, and the Xxxxxxx Xxxxxxx and Securities Fraud
Enforcement Act of 1988 and all rules and regulations thereunder. DSA-NY agrees
to adopt and comply with the "Code of Ethics of and for Xxxxx Selected Advisers,
L.P. and the Companies For Which It Acts As Investment Adviser" as in effect
from time to time and to keep in effect a policy and supervisory procedures
designed to prevent xxxxxxx xxxxxxx.
10. The parties acknowledge that DSA-NY is controlled by or under common
control with the Adviser. The Adviser shall pay DSA-NY all reasonable direct
and indirect costs associated with the maintenance of an office and the
performance of the terms of this Agreement. The Adviser shall also reimburse
expenses expressly approved for reimbursement by the Adviser. Payment for DSA-
NY's services and reimbursement of expenses approved by the Adviser shall be
made monthly, in arrears, by the 15th day of the following month.
11. This Agreement shall become effective on the later of December 1, 1996 or
the first business day after the date this Agreement is approved in accordance
with the 1940 Act (provided that it is reflected in an effective post-effective
amendment under the Securities Act of 1933 and the 1940 Act). Unless sooner
terminated as hereunder provided, it shall initially remain in effect for a
period not exceeding two years. Thereafter, subject to the termination
provisions herein, this Agreement shall continue in force from year to year
thereafter, but only as long as such continuance is specifically approved at
least annually in the manner required by the 1940 Act; provided, however, that
if the continuation of this Agreement is not approved, DSA-NY may continue to
serve in the manner and to the extent permitted by the 1940 Act and the rules
and regulations thereunder.
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12. This Agreement shall automatically terminate immediately in the event of its
assignment (except as otherwise permitted by the 1940 Act or rules thereunder)
or in the event of the termination of the Investment Advisory Agreement. This
Agreement may be terminated without payment of any penalty at any time (a) upon
sixty (60) days' written notice to DSA-NY by the Adviser or upon such sixty (60)
days' written notice to DSA-NY by the Fund pursuant to action by its Board of
Directors or by the vote of a majority of the outstanding voting securities of
the Fund, or (b) upon sixty (60) days' written notice by DSA-NY to the Adviser.
The terms "assignment" and "vote of a majority of the outstanding voting
securities" shall have the meaning set forth in the 1940 Act and the rules and
regulations thereunder. Termination of this Agreement shall not affect DSA-NY's
right to receive payments on any unpaid balance of the compensation earned and
reimbursable expenses incurred prior to such termination. Upon receipt of
notification of termination as provided above DSA-NY shall immediately cease all
activities in connection with the Fund except as otherwise directed by the
Adviser.
13. DSA-NY agrees that it shall abide by the terms of the agreement of the
Adviser with the Fund as to the names of the Fund and the Adviser and shall not
use the name of the Adviser or the Fund without the prior written consent of the
Adviser or the Fund.
14. If any provisions of this Agreement shall be held or made invalid by a court
decision, statute or rule or otherwise, the remainder shall not be thereby
affected.
15. This Agreement shall be construed according to the laws of the State of New
Mexico. It may be executed in counterparts each of which shall be deemed an
original and all of which together shall constitute one and the same agreement.
If the foregoing terms and conditions are acceptable to you, please acknowledge
in the space provided. Upon your acceptance, the retention and the mutual
obligations in respect thereto shall be effective as provided herein.
Sincerely,
Xxxxx Selected Advisers, L.P.
By Venture Advisers, Inc.,
General Partner
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By:
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Its:
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Accepted and Approved this 1st day of December, 1996
Xxxxx Selected Advisers - NY, Inc.
By:
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Its:
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