Exhibit 5(d)
(the "Agreement"), dated as of the Effective Date, as
defined below, by and between Security Capital Research & Management
Incorporated (formerly Security Capital Global Capital Management Group
Incorporated), a Delaware corporation ("SC-R&M") and Security Capital Real
Estate Mutual Funds Incorporated, a Maryland corporation ("Fund").
WHEREAS, the Fund is an open-end investment company registered under the
Investment Company Act of 1940, as amended (the "Act") and Security Capital
European Real Estate Shares is an investment portfolio of the Fund
("Portfolio"); and
WHEREAS, SC-R&M serves as investment adviser to the Portfolio pursuant to
an Investment Advisory Agreement with the Fund dated June 30, 1998 ("Advisory
Agreement"), the continuance of which until December 31, 2003 has been approved
by the Fund's Board of Directors in accordance with the requirements of Section
15(c) of the Investment Company Act of 1940, pursuant to which the Portfolio
pays SC-R&M, monthly, an annual management fee in an amount equal to .85% of the
average daily net asset value of the Portfolio ("Advisory Fee"); and
WHEREAS, on December 12, 2001, the Board of Directors approved a
("") between SC-R&M and the Fund,
pursuant to which SC-R&M agreed, until December 31, 2002 or for such longer
period as SC-R&M may determine, to waive the advisory fee under the investment
advisory agreements for Security Capital European Real Estate Shares
("SC-EUROPEAN") and/or reimburse the Fund to the extent necessary to maintain
the total operating expenses (excluding brokerage fees and commissions,
interest, taxes and other extraordinary expenses) of SC-EUROPEAN's shares at
1.45% of SC-EUROPEAN's average daily net assets; and
WHEREAS, the proposed merger of an affiliate of General Electric Capital
Corporation and Security Capital Group Incorporated (the "Merger") will result
in an assignment and the automatic termination of the Investment Advisory
Agreement between SC-R&M and the Fund on behalf of SC-EUROPEAN which is
referenced in the ; and
WHEREAS, the Board of Directors believes that it is in the best interests
of the Fund and its shareholders for the Fund to enter into a new Investment
Advisory Agreement with SC-R&M (the "New Advisory Agreement") pursuant to which
SC-R&M will serve as the Fund's investment adviser for SC-US and SC-EUROPEAN;
and
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WHEREAS, the proposed Merger is expected to occur before shareholders of
SC-EUROPEAN will meet to approve the New Advisory Agreement; and
WHEREAS, Rule 15a-4 under the 1940 Act permits a person to act as
investment adviser for a fund under an interim contract after the termination of
a previous contract as provided therein; and
WHEREAS, the Board of Directors believes that it is in the best interests
of the Fund and its shareholders for the Fund to enter into an Interim
Investment Advisory Agreement with SC-R&M (the "Interim Advisory Agreement"),
pursuant to which SC-R&M will serve as the Fund's investment adviser for
SC-EUROPEAN until SC-EUROPEAN's shareholders approve the New Advisory Agreement;
and
WHEREAS, SC-R&M wishes to enter into a new ("New
SC-EUROPEAN ") with the Fund, at such time as the Merger
becomes final (the "Effective Date"), pursuant to which SC-R&M would, until
December 31, 2003 or for such longer period as SC-R&M may determine, either
under the Interim Advisory Agreement or under the New Advisory Agreement, as
applicable, waive the Advisory Fee and/or reimburse the Fund to the extent
necessary to maintain the total operating expenses (excluding brokerage fees and
commissions, interest, taxes and other extraordinary expenses) of SC-EUROPEAN's
shares at 1.45% of SC-EUROPEAN's average daily net assets;
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the parties covenant and agree as follows:
1. Duties of SC-R&M. SC-R&M hereby agrees that from January 1, 2003 through
December 31, 2003, either under the Interim Advisory Agreement or under the New
Advisory Agreement, as applicable, SC-R&M shall waive the Advisory Fee and/or
reimburse the Fund to the extent necessary to maintain the total operating
expenses (excluding brokerage fees and commissions, interest, taxes and other
extraordinary expenses) of the Portfolio at 1.45% of the Portfolio's average
daily net assets.
2. Annual Review. SC-R&M will review its undertaking to waive the Advisory
Fee and/or reimburse the Fund with respect to the Portfolio as set forth in
Paragraph 1 on an annual basis. There is no assurance SC-R&M will continue to
waive the Advisory Fee and/or reimburse expenses beyond the specified period.
SC-R&M shall notify the Fund promptly of its annual determination with respect
to the undertaking hereunder.
3. Severability. If any provision of this Agreement shall be found to be
invalid by a court decision, statute, rule or otherwise, the reminder of this
Agreement shall not be affected thereby.
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4. Notice. Any notices under this Agreement shall be in writing addressed
and delivered personally (or by telecopy) or mailed postage-paid, to the other
party at such address as such other party may designate in accordance with this
paragraph for the receipt of such notice. Until further notice to the other
party, it is agreed that the address of SC-R&M and the Fund shall be 00 Xxxxx
XxXxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
5. Miscellaneous. Each party agrees to perform such further actions and
execute such further documents as are necessary to effectuate the purposes
hereof. This Agreement shall be construed and enforced and interpreted in
accordance with and governed by the laws of the State of Illinois without
reference to principles of conflicts of law. The captions in this Agreement are
included for convenience only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but such counterparts shall, together, constitute only
one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written.
SECURITY CAPITAL REAL ESTATE MUTUAL
FUNDS INCORPORATED
By: /s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx, Vice President
SECURITY CAPITAL RESEARCH &
MANAGEMENT INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx Xx.
----------------------------------
Xxxxxxx X. Xxxxx Xx., President
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