FORM OF CO-INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of the 26th day of January, 1998, by and between TCW/DW
Emerging Markets Opportunities Trust, an unincorporated business trust
organized under the laws of the Commonwealth of Massachusetts (hereinafter
called the "Fund"), and Xxxxxx Xxxxxxx Asset Management Inc., a Delaware
corporation (hereinafter "MSAM"):
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 has entered into a Co-Investment Advisory Agreement with
TCW Funds Management, Inc. ("TCW"), dated the date hereof, on terms identical
to those set forth herein; and
WHEREAS, MSAM is registered as an investment adviser under the Investment
Advisers Act of 1940 (the "Advisers Act"), and engages in the business of
acting as investment adviser; and
WHEREAS, the Fund desires to retain MSAM to render investment advisory
services in the manner and on the terms and conditions hereinafter set forth;
and
WHEREAS, MSAM desires to be retained to perform services on said terms and
conditions; and
WHEREAS, pursuant to a mutual agreement with TCW, MSAM has been designated
as having investment advisory responsibility with respect to certain
specified assets of the Trust (the "Initial MSAM Assets") such designation to
take effect on the date of implementation of this Agreement.
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 MSAM agree as follows:
1. The Fund hereby retains MSAM to act as co-investment adviser of the
Fund and, subject to the supervision of the Trustees of the Fund (the
"Trustees"), to invest the Fund's assets as hereinafter set forth. MSAM's
responsibilities hereunder shall extend to the Initial MSAM Assets and all
securities and commodities purchased with the proceeds of any sale or
transfer for value of any such assets, along with cash generated by such
sales and all additional cash allocated to it pursuant to Section 2, said
amount then reduced by any redemptions funded out of these same assets
pursuant to Section 2 (together, the "MSAM Assets"). DWSC, the Fund's
Manager, will be responsible for recording the assets that constitute MSAM
Assets hereunder for purposes of this Section; and Sections 2 and 8, below.
Without limiting the generality of the foregoing, MSAM shall obtain and
evaluate such information and advice relating to the economy, securities and
commodities markets and securities and commodities as it deems necessary or
useful to discharge its duties hereunder; shall continuously invest the
assets of the Fund with respect to assets allocated to its discretionary
management in a manner consistent with the investment objectives and policies
and restrictions of the Fund (for this purpose the Fund's investment policies
and restrictions shall be applied on a percentage basis as if MSAM Assets
represent 100% of the Fund's assets); determine the securities and
commodities with respect to assets allocated to its discretionary management
to be purchased, sold or otherwise disposed of by the Fund and the timing of
such purchases, sales and dispositions; and shall take such further action,
including, the placing of purchase and sale orders on behalf of the Fund with
respect to assets allocated to its discretionary management, as MSAM shall
deem necessary or appropriate. MSAM shall also furnish to or place at the
disposal of the Fund such of the information, evaluations, analyses and
opinions formulated or obtained by MSAM in the discharge of its duties as the
Fund may, from time to time, reasonably request.
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2. Cash resulting from sales and redemption of Fund shares shall in each
case be allocated equally between TCW and MSAM. Redemptions shall be funded
equally out of the assets managed by each of TCW and MSAM.
3. MSAM may, at its own expense, enter into Sub-Advisory Agreements with
sub-advisers to make determinations as to the securities and commodities to
be purchased, sold or otherwise disposed of by the Fund and the timing of
such purchases, sales and dispositions and to take such further action,
including the placing of purchase and sale orders on behalf of the Fund, as
the sub-advisers, in consultation with MSAM, shall deem necessary or
appropriate; provided that MSAM shall be responsible for monitoring
compliance by such sub-advisers with the investment policies and restrictions
of the Fund and with such other limitations or directions as the Trustees of
the Fund may from time to time prescribe.
4. MSAM 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 MSAM shall be deemed to include persons
employed or otherwise retained by MSAM to furnish statistical and other
factual data, advice regarding economic factors and trends, information with
respect to technical and scientific developments, and such other information,
advice and assistance as MSAM may desire. MSAM shall provide the Fund's
manager with such records and information as may reasonably be required by
the Fund's manager pursuant to its obligations under its management agreement
with the Fund to maintain the Fund's books and records.
5. The Fund will, from time to time, furnish or otherwise make available
to MSAM such financial reports, proxy statements and other information
relating to the business and affairs of the Fund as MSAM may reasonably
require in order to discharge its duties and obligations hereunder.
6. MSAM shall bear the cost of rendering the investment advisory services
to be performed by it under this Agreement, and shall, at its own expense,
pay the compensation of its directors, officers and employees, if any, who
are also Trustees or officers of the Fund.
7. The Fund assumes and shall pay or cause to be paid all other expenses
of the Fund (except expenses borne by the Fund's manager pursuant to a
management agreement with the Fund), including without limitation: fees
pursuant to any management 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 of 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 MSAM or the Fund's manager 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
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persons (as defined in the Act) of the Fund or MSAM or the Fund's manager,
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.
8. For the services to be rendered by MSAM, the Fund shall pay to MSAM
monthly compensation, calculated from the day following the date of this
Agreement, determined by applying the annual rate of 0.50% to the Fund's
average daily net assets and multiplying that number by the percentage of the
Fund's total assets represented by the MSAM Assets. Except as hereinafter set
forth, compensation under this Agreement shall be calculated and accrued
daily and paid monthly by applying 1/365ths of the annual rates to the Fund's
net assets 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.
9. MSAM will use its best efforts in its investment of the MSAM Assets,
but in the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of its obligations hereunder, MSAM 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 MSAM or for any losses sustained by the Fund or
its investors. MSAM shall not be liable in any respect to the Fund with
regard to assets of the Fund that are not MSAM Assets. MSAM 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.
10. Nothing contained in this Agreement shall prevent MSAM or any
affiliated person of MSAM from acting as investment adviser or manager for
any other person, firm or corporation (including any other investment
company), whether or not the investment objectives or policies of any such
other person, firm or corporation are similar to those of the Fund, and shall
not in any way bind or restrict MSAM or any such affiliated person from
buying, selling or trading any securities or commodities for their own
accounts or for the account of others for whom MSAM or any such affiliated
person may be acting. Nothing in this Agreement shall limit or restrict the
right of any trustee, officer or employee of MSAM to engage in any other
business or to devote his time and attention in part to the management or
other aspects of any other business whether of a similar or dissimilar
nature.
11. This Agreement shall remain in effect until April 30, 1999 and from
year to year thereafter provided such continuance is approved at least
annually by the vote of holders of a majority, as defined in the Act, of the
outstanding voting securities of the Fund or by the Board of Trustees of the
Fund; provided that in either event such continuance is also approved
annually by the vote of a majority of the Trustees of the Fund who are not
parties to this Agreement or "interested persons" (as defined in the Act) of
any such party, which vote must be cast in person at a meeting called for the
purpose of voting on such approval; provided, however, that (a) the Fund may,
at any time and without the payment of any penalty, terminate this Agreement
upon thirty days' written notice to MSAM, either by majority vote of the
Trustees of the Fund or by the vote of a majority of the outstanding voting
securities of the Fund; (b) this Agreement shall immediately terminate in the
event of its assignment (to the extent required by the Act and the rules
thereunder) unless such automatic terminations shall be prevented by an
exemptive order of the Securities and Exchange Commission; and (c) MSAM may
terminate this Agreement without payment of penalty on thirty days' written
notice to the Fund. 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.
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12. This Agreement may be amended by the parties without the vote or
consent of the shareholders of the Fund to supply any omission, to cure,
correct or supplement any ambiguous, defective or inconsistent provision
hereof, or if they deem it necessary to conform this Agreement to the
requirements of applicable federal laws or regulations, but neither the Fund
nor MSAM shall be liable for failing to do so.
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,
conflict with the applicable provisions of the Act, the Advisers Act or any
rules, regulations or orders of the Securities and Exchange Commission, the
latter shall control.
14. The Amended and Restated Declaration of Trust of TCW/DW Emerging
Markets Opportunities Trust, dated January 12, 1998, 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 Emerging Markets Opportunities Trust 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
Emerging Markets Opportunities Trust 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 Emerging Markets Opportunities Trust, but the Trust Estate only shall
be liable.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement, as amended, on the day and year first above written in New York,
New York.
TCW/DW EMERGING MARKETS
OPPORTUNITIES TRUST
By:
..............................
Attest:
................................
XXXXXX XXXXXXX ASSET
MANAGEMENT INC.
By:
..............................
Attest:
................................
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