INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 3rd day of June, 1998, by and between LM
Institutional Advisors, Inc. ("Manager"), a Maryland corporation, and Brandywine
Asset Management, Inc. ("Brandywine"), a Delaware corporation, each of which is
registered as an investment adviser under the Investment Advisers Act of 1940,
as amended.
WHEREAS, the Manager is the manager of certain of the series of LM
Institutional Fund Advisors II, Inc. (the "Corporation"), an open-end,
management investment company registered under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Manager wishes to retain Brandywine to provide certain
investment advisory services in connection with the Manager's management of
Brandywine Small Cap Value Portfolio ("Fund"), a series of the Corporation; and
WHEREAS, Brandywine is willing to furnish such services on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed as follows:
1. Appointment. The Manager hereby appoints Brandywine as investment
adviser for the Fund for the period and on the terms set forth in this
Agreement. Brandywine accepts such appointment and agrees to furnish the
services herein set forth for the compensation herein provided.
2. Delivery of Documents. The Manager has furnished Brandywine with
copies of each of the following:
(a) The Corporation's Articles of Incorporation and all amendments
thereto (such Articles of Incorporation, as presently in effect and as they
shall from time to time be amended, are herein called the "Articles");
(b) The Corporation's By-Laws and all amendments thereto (such By-Laws,
as presently in effect and as they shall from time to time be amended, are
herein called the "By-Laws");
(c) Resolutions of the Corporation's Board of Directors (the
"Directors") authorizing the appointment of the Manager as the manager and
Brandywine as investment adviser and approving the Investment Management
Agreement between the Manager and the Corporation with respect to the Fund dated
June 3, 1998 (the "Management Agreement") and this Agreement;
(d) The Fund's most recent prospectus (such prospectus, as presently in
effect, and all amendments and supplements thereto are herein called the
"Prospectus"); and
(e) The Fund's most recent statement of additional information (such
statement of additional information, as presently in effect, and all amendments
and supplements thereto are herein called the "Statement of Additional
Information").
The Manager will furnish Brandywine from time to time with copies of all
amendments of or supplements to the foregoing.
3. Investment Advisory Services. (a) Subject to the supervision of the
Directors and the Manager, Brandywine shall as requested by the Manager
regularly provide the Fund with investment research, advice, management and
supervision and shall furnish a continuous investment program for the Fund
consistent with the Fund's investment objectives, policies, and restrictions as
stated in the Fund's current Prospectus and Statement of Additional Information.
Brandywine shall as requested by the Manager determine
from time to time what securities or other property will be purchased, retained
or sold by the Fund, and shall implement those decisions, all subject to the
provisions of the Corporation's Articles and By-Laws, the 1940 Act, the
applicable rules and regulations of the Securities and Exchange Commission, and
other applicable federal and state law, as well as the investment objectives,
policies, and restrictions of the Fund, as each of the foregoing may be amended
from time to time. Brandywine will as requested by the Manager place orders
pursuant to its investment determinations for the Fund either directly with the
issuer or with any broker, dealer or futures commission merchant (collectively,
a "broker"). In the selection of brokers and the placing of orders for the
purchase and sale of portfolio investments for the Fund, Brandywine shall seek
to obtain for the Fund the most favorable price and execution available, except
to the extent it may be permitted to pay higher brokerage commissions for
brokerage and research services as described below. In using its best efforts to
obtain for the Fund the most favorable price and execution available,
Brandywine, bearing in mind the Fund's best interests at all times, shall
consider all factors it deems relevant, including, by way of illustration,
price, the size of the transaction, the nature of the market for the security,
the amount of the commission, the timing of the transaction taking into
consideration market prices and trends, the reputation, experience and financial
stability of the broker involved and the quality of service rendered by the
broker in other transactions. Subject to such policies as the Directors may
determine and communicate to Brandywine in writing, Brandywine shall not be
deemed to have acted unlawfully or to have breached any duty created by this
Agreement or otherwise solely by reason of its having caused the Fund to pay a
broker that provides brokerage and research services to Brandywine or any
affiliated person of Brandywine an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker would have charged for effecting that transaction, if Brandywine
determines in good faith that such amount of commission was reasonable in
relation to the value of the brokerage and research services provided by such
broker, viewed in terms of either that particular transaction or Brandywine's
overall responsibilities with respect to the Fund and to other clients of
Brandywine and any affiliated person of Brandywine as to which Brandywine or any
affiliated person of Brandywine exercises investment discretion. Brandywine
shall also perform such other functions of management and supervision as may be
requested by the Manager and agreed to by Brandywine.
(b) Brandywine will as requested by the Manager oversee the maintenance
of all books and records with respect to the investment transactions of the Fund
in accordance with all applicable federal and state laws and regulations, and
will furnish the Directors with such periodic and special reports as the
Directors or the Manager reasonably may request.
(c) The Corporation hereby agrees that any entity or person associated
with Brandywine (or with any affiliated person of Brandywine) which is a member
of a national securities exchange is authorized to effect any transaction on
such exchange for the account of the Fund which is permitted by Section 11(a) of
the Securities Exchange Act of 1934, as amended, and Rule 11a2-2(T) thereunder,
and the Corporation hereby consents to the retention of compensation for such
transactions in accordance with Rule 11a2-2(T)(a)(2)(iv) or otherwise.
4. Services Not Exclusive. Brandywine's services hereunder are not
deemed to be exclusive, and Brandywine shall be free to render similar services
to others. It is understood that persons employed by Brandywine to assist in the
performance of its duties hereunder might not devote their full time to such
service. Nothing herein contained shall be deemed to limit or restrict the right
of Brandywine or any affiliate of Brandywine to engage in and devote time and
attention to other businesses or to render services of whatever kind or nature.
5. Books and Records. In compliance with the requirements of Rule 31a-3
under the 1940 Act, Brandywine hereby agrees that all books and records which it
maintains for the Fund are property of the Fund and further agrees to surrender
promptly to the Fund or its agents any of such records upon the Fund's request.
Brandywine further agrees to preserve for the periods prescribed by Rule 31a-2
under the 1940 Act any such records required to be maintained by Rule 31a-1
under the 1940 Act.
6. Expenses. During the term of this Agreement, Brandywine will pay all
expenses incurred by it in
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connection with its activities under this Agreement other than the cost of
securities and other property (including brokerage commissions, if any)
purchased for the Fund.
7. Compensation. For the services which Brandywine will render to the
Manager and the Fund under this Agreement, the Manager will pay Brandywine a
fee, computed daily and paid monthly, at an annual rate of 0.60% of the average
daily net assets of the Fund. The average daily net assets of the Fund shall in
all cases be based only on business days and be computed as of the time of the
regular close of business of the New York Stock Exchange, or such other time as
may be determined by the Directors of the Corporation. Fees due to Brandywine
hereunder shall be paid promptly to Brandywine by the Manager following its
receipt of fees from the Fund. If this Agreement is terminated as of any date
not the last day of a calendar month, a final fee shall be paid promptly after
the date of termination and shall be based on the percentage of days of the
month during which the contract was still in effect.
8. Limitation of Liability. In the absence of willful misfeasance, bad
faith or gross negligence on the part of Brandywine, or reckless disregard of
its obligations and duties hereunder, Brandywine shall not be subject to any
liability to the Manager, the Fund or any shareholder of the Fund, for any act
or omission in the course of, or connected with, rendering services hereunder.
9. Definitions. As used in this Agreement, the terms "assignment,"
"interested person," "affiliated person," and "majority of the outstanding
voting securities" shall have the meanings given to them by Section 2(a) of the
1940 Act, subject to such exemptions and interpretations as may be granted by
the Securities and Exchange Commission by any rule, regulation or order; the
term "specifically approve at least annually" shall be construed in a manner
consistent with the 1940 Act and the rules and regulations thereunder; and the
term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
10. Term. This Agreement shall become effective upon its execution, and
shall remain in full force and effect continuously thereafter (unless terminated
automatically as set forth in Section 12) until terminated as follows:
a. The Corporation may at any time terminate this Agreement by
not more than 60 days' written notice delivered or mailed by registered
mail, postage prepaid, to the Manager and Brandywine, or
b. If (i) the Directors or the shareholders of the Fund by
vote of a majority of the outstanding voting securities of the Fund,
and (ii) a majority of the Directors who are not interested persons of
the Corporation, the Manager or Brandywine, by vote cast in person at a
meeting called for the purpose of voting on such approval, do not
specifically approve at least annually the continuance of this
Agreement, then this Agreement shall automatically terminate at the
close of business on the second anniversary of its execution, or upon
the expiration of one year from the effective date of the last such
continuance, whichever is later; PROVIDED, HOWEVER, that if the
continuance of this Agreement is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Agreement as provided herein, Brandywine may
continue to serve hereunder in a manner consistent with the 1940 Act
and the rules and regulations thereunder, or
c. The Manager may at any time terminate this Agreement by not
less than 60 days' written notice delivered or mailed by registered
mail, postage prepaid, to Brandywine, and Brandywine may at any time
terminate this Agreement by not less than 60 days' written notice
delivered or mailed by registered mail, postage prepaid, to the
Manager.
Action by the Corporation under paragraph (a) of this Section 10 may be
taken either (i) by vote of a majority of the Directors, or (ii) by the vote of
a majority of the outstanding voting securities of the Fund.
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11. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
12. No Assignment; Amendments. This Agreement shall terminate
automatically in the event of its assignment or in the event that the Management
Agreement shall have terminated for any reason. Any termination of this
Agreement pursuant to Section 10 shall be without the payment of any penalty.
This Agreement shall not be amended unless such amendment is approved by the
vote of a majority of the outstanding voting securities of the Fund (provided
that such shareholder approval is required by the 1940 Act and the rules and
regulations thereunder, giving effect to any interpretations of the Securities
and Exchange Commission and its staff) and by the vote, cast in person at a
meeting called for the purpose of voting on such approval, of a majority of the
Directors who are not interested persons of the Corporation, the Manager or
Brandywine.
13. Miscellaneous. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings relating to the subject matter hereof. 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. Should any part of this Agreement 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 and shall inure to the
benefit of the parties hereto and their respective successors.
14. Non-Exclusive Right. In the event this Agreement is terminated or
upon written notice from Brandywine at any time, the Corporation hereby agrees
that it will eliminate from the Fund's name any reference to the name of
"Brandywine." The Corporation, on behalf of the Fund, shall have the
non-exclusive use of the name "Brandywine" in whole or in part only so long as
this Agreement is effective or until such notice is given.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the day and year first above
written.
LM INSTITUTIONAL ADVISORS, INC.
Attest:
By: ______________________ By: _______________________
BRANDYWINE ASSET MANAGEMENT, INC.
Attest:
By: ______________________ By: _______________________
The foregoing is accepted by:
LM INSTITUTIONAL FUND ADVISORS II, INC.
Attest:
By: ______________________ By: _______________________
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