SCHRODER SERIES TRUST II
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
Agreement, dated and effective as of December 9, 1997, as amended and
restated as of September 15, 1999, between Schroder Series Trust II, a
Delaware business trust (the "Trust") and Xxxxxxxx Investment Management
North America Inc., a Delaware corporation (the "Adviser").
WITNESSETH:
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the
"Investment Company Act");
WHEREAS, the Adviser provides investment advice and is registered with
the Securities and Exchange Commission (the "SEC") as an investment adviser
under the Investment Advisers Act of 1940, as amended (the "Advisers Act")
and is registered with the United Kingdom Investment Management Regulatory
Organisation ("IMRO");
WHEREAS, the Trust desires to retain the Adviser to render investment
advisory services to the Trust on behalf of Schroder All-Asia Fund (the
"Fund") in the manner and on the terms hereinafter set forth; and
WHEREAS, the Adviser is willing to render such investment advisory
services to the Trust and the Fund;
NOW THEREFORE, in consideration of the promises and covenants hereinafter
contained, the Trust and the Adviser hereby agree as follows:
1. ENGAGEMENT OF THE ADVISER. The Trust hereby employs the Adviser to
act as the Fund's investment adviser and to provide the investment advisory
services described below, subject to the supervision of the Board of Trustees
of the Trust, for the period and on the terms and conditions set forth in
this Agreement. The Adviser hereby accepts such employment and agrees during
such period to render such services and to assume the obligations herein set
forth for the compensation provided for herein. The Adviser shall for all
purposes herein be deemed to be an independent contractor and shall, unless
otherwise expressly provided or authorized, have no authority hereunder to
act for or represent the Trust in any way or otherwise be deemed an agent of
the Trust.
2. INVESTMENT ADVISORY SERVICES. Subject always to the Trust's Trust
Instrument, any Bylaws, and its registration statement filed on Form N-1A
with the SEC, as such registration
statement may be amended from time to time (the "Registration Statement"),
the Adviser shall act as investment adviser to the Trust and as such shall
furnish continuously an investment program for the Fund consistent with the
Fund's investment objective, policies and restrictions. In the performance of
its duties hereunder, the Adviser shall:
1. determine from time to time which securities shall be purchased,
sold or exchanged and what portion of the assets of the Fund shall be held
in various securities and assets in which the Trust invests or in cash;
2. make decisions for the Fund with respect to foreign currency
matters and foreign exchange contracts, having regard to foreign exchange
controls, if any;
3. advise the Fund in connection with policy decisions to be made
by the Trust's Board of Trustees or any committee thereof with respect to
its investments and, as requested, furnish the Trust with research,
economic and statistical data in connection with the Fund's investments
and investment policies;
4. submit such reports relating to the valuation of the Fund's
securities as the Trust's Board of Trustees or the Trust's administrator
or subadministrator may reasonably request;
5. place orders for the purchase, sale or exchange of portfolio
assets for the Fund's accounts with brokers or dealers selected by the
Adviser; provided, however, that in connection with the placing of such
orders and the selection of such brokers or dealers the Adviser shall
seek to obtain execution and pricing within the policy guidelines
established by the Trust's Board of Trustees and set forth in the
Registration Statement of the Trust as in effect from time to time;
6. provide information in the Adviser's possession to the Trust's
administrator or subadministrator as the Trust's administrator or
subadministrator may request to maintain and preserve the records required
by the Investment Company Act;
7. obtain and evaluate such information relating to economics,
industries, businesses, securities markets and securities as the Adviser
may deem necessary or useful in the discharge of its duties hereunder; and
8. from time to time, or at any time requested by the Trust's Board
of Trustees, make reports to the Trust concerning the Adviser's performance
of the foregoing services and furnish advice and recommendations with
respect to other aspects of the business and affairs of the Trust or the
Fund.
3. ALLOCATION OF CHARGES AND EXPENSES.
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1. The Adviser shall pay for maintaining its staff and personnel
necessary to perform its obligations under this Agreement and shall, at its
own expense, maintain the office space, facilities, equipment and personnel
that are reasonably necessary to carry out its obligations hereunder. In
addition, the Adviser shall pay the reasonable salaries, fees and expenses
of such of the Trust's officers and employees (including the Trust's share
of payroll taxes) and any fees and expenses of such of the Trust's Trustees
as are directors, officers or employees of the Adviser or of Xxxxxxxx Fund
Advisors Inc. or their affiliates; provided, however, that the Trust, and
not the Adviser, shall bear out-of-pocket travel expenses of Trustees and
officers of the Trust or of Xxxxxxxx Fund Advisors Inc. who are directors,
officers or employees of the Adviser or Xxxxxxxx Fund Advisors Inc. to the
extent that such expenses relate to attendance at meetings of the Board of
Trustees of the Trust or any committees thereof.
2. The Trust assumes on the Fund's behalf and shall pay or cause to
be paid fees to the Adviser, administrator, subadministrator and all
other expenses of the Fund including, without limitation: (1) charges
and expenses of any custodian, subcustodian or depository appointed by
the Board of Trustees for the safekeeping of the Fund's cash, securities
or property and fees and expenses of any transfer agent, dividend paying
agent and registrar for the Fund; (2) charges and expenses of accounting and
auditing; (3) expenses and fees associated with registering and qualifying
securities issued by the Fund for sale with the SEC and in various states
and foreign jurisdictions and expenses of preparing any share certificates
and other expenses in connection with the issuance, offering or underwriting
of such securities, including any stock exchange listing fees and freight
insurance and other charges in connection with the shipment of the Fund's
portfolio securities; (4) expenses of stationery, preparing, printing and
distributing reports, notices and dividends and other documents to the
Fund's shareholders, including, without limitation, expenses of the
administrator or subadministrator; (5) interest on any indebtedness of the
Fund; (6) governmental fees and taxes of the Fund, including any stock
transfer tax payable on a portfolio security of the Fund; (7) brokerage
commissions and other expenses incurred in acquiring or disposing of the
Fund's portfolio securities; (8) costs of Trustees' and officers' insurance
and fidelity bonds; (9) compensation and expenses of the Trustees who are
not interested persons of the Adviser, including out-of-pocket travel
expenses; (10) costs and expenses incidental to holding meetings of the
Board of Trustees, or any committees thereof, or meetings of shareholders
including out-of-pocket travel expenses of the Trustees and officers of
the Trust or Xxxxxxxx Fund Advisors Inc. who are directors, officers or
employees of the Adviser or Xxxxxxxx Fund Advisors Inc. to the extent
that such expenses relate to attendance at such meetings; (11) fees for
legal, auditing and consulting services and litigation expenses,
including settlement or arbitration costs; (12) dues and expenses
incurred in connection with membership in investment company
organizations and expenses relating to investor and public relations;
and (13) costs, expenses and fees incurred in connection with
obtaining, maintaining, refinancing or repaying indebtedness. It is
understood that the organization, offering and marketing expenses,
including accounting, legal and printing expenses and registration fees
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incurred by the Adviser or Xxxxxxxx Fund Advisors Inc. on behalf of the
Trust in connection with the initial public offering of the Trust's
securities will be reimbursed to the Adviser or Schroder Fund Advisors
Inc. by the Trust.
4. COMPENSATION OF THE INVESTMENT ADVISER.
1. FEES.
(1). In consideration of the foregoing, the Trust shall pay
the Adviser a fee at an annual rate of 0.90% of the average daily net assets
of that portion of the assets of the Fund that are not invested in another
registered open-end management investment company, or separate series
thereof, in accordance with Section 12(d)(1)(G) of the Investment Company
Act, the rules thereunder or an applicable order of the Securities and
Exchange Commission, granting an exemption from the prohibitions of Rule
12(d)(1) of that Act. No fee shall be payable under this subparagraph (i)
during any period in which the Trust invests all (or substantially all) of
its investment assets in a registered, open-end management investment
company, or a separate series thereof, in accordance with Section
12(d)(1)(E) of the Investment Company Act.
(2). In the event that investment assets of the Trust are
invested in another registered open-end management investment company, or
separate series thereof, the Trust shall pay the Adviser a fee on such
assets at an annual rate of 0.20% of the average daily net assets of the
Trust. Such fees shall be accrued daily and shall be payable monthly in
arrears on the first day of each calendar month for services performed
hereunder during any prior calendar month.
2. EXPENSE LIMITATIONS. In the event the operating expenses of the
Fund, including amounts payable to the Adviser pursuant to subsection (a)
hereof, for any fiscal year of the Trust ending on a date on which this
Agreement is in effect, exceed the expense limitations applicable to the
Trust imposed by applicable state securities laws or regulations thereunder,
as such limitations may be raised or lowered from time to time, the Adviser
shall reduce its management fee by the extent of such excess and, if
required pursuant to any such laws or regulations, will reimburse the Fund
in the amount of such excess; provided, however, to the extent permitted by
law, there shall be excluded from such expenses the amount of any interest,
taxes, brokerage commissions and extraordinary expenses (including, but not
limited to, legal claims and liabilities and litigation costs, including
settlement or arbitration costs, and any indemnification related thereto)
paid or payable by the Trust. Whenever the expenses of the Fund exceed a
pro rata portion of the applicable annual expense limitations, the estimated
amount of reimbursement under such limitations shall be applicable as an
offset against the monthly payment of the management fee due to the Adviser.
Should two or more expense limitations be applicable as of the end of the
last business day of the month, that expense limitation which results in the
largest reduction in the Adviser's fee shall be applicable.
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5. LIMITATION OF LIABILITY OF THE ADVISER.
1. The Adviser shall not be liable for any error of judgment or
mistake of law or for any loss arising out of any investment or for any act
or omission in the execution and management of the Fund, except for willful
misfeasance, bad faith or gross negligence in the performance of its duties,
or by reason of reckless disregard of its obligations and duties hereunder.
As used in this Section 5, the term "Adviser" shall include any affiliates
of the Adviser performing services for the Fund contemplated hereby and
directors, officers and employees of the Adviser as well as that corporation
itself.
2. The Adviser shall not be liable for any losses caused by
disturbances of its operations by virtue of force majeure, war, riot or
damage caused by nature or due to other events for which it is not
responsible (e.g., strike, lock-out or losses caused by the imposition of
foreign exchange controls, expropriation of assets or other acts of domestic
or foreign authorities).
3. The presence of exculpatory language in this Agreement shall not
be deemed by the Trust, the Adviser or any other party appointed pursuant to
this Agreement, including, without limitation, any custodian, as in any way
limiting causes of action and remedies that, notwithstanding such language,
may be available to the Trust or Fund either under common law or statutory
law principles applicable to fiduciary relationships or under the federal
securities laws of the United States.
6. OTHER ACTIVITIES OF THE ADVISER AND ITS AFFILIATES.
1. Nothing herein contained shall prevent the Adviser or any of its
affiliates from engaging in any other business or from acting as investment
adviser or investment manager for any other person or entity, whether or not
having investment policies or portfolios similar to that of the Fund or
Trust; and it is specifically understood that officers, directors and
employees of the Adviser and its affiliates may continue to engage in
providing portfolio management services and advice to other investment
companies whether or not registered, and to other investment advisory
clients. When other investment companies or clients of the Adviser desire to
purchase or sell a security at the same time such security is purchased or
sold for the Fund, such purchases and sales will, to the extent feasible, be
allocated among the Fund and such other investment companies or clients in a
manner believed by the Adviser to be equitable to the Trust and such other
investment companies clients.
2. The Adviser reserves the right to grant the use of the name
"SCHRODER" or any derivative thereof to any other investment company or
business enterprise. The Adviser reserves the right to withdraw from the
Trust the use of the name "SCHRODER" and the use of its registered service
xxxx; at such time of withdrawal of the right to use the
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name "SCHRODER," the Adviser agrees that the question of continuing this
Agreement may be submitted to a vote of the Fund's shareholders. In the
event of such withdrawal or the termination of this Agreement, for any
reason, the Trust will, on the written request of the Adviser, take such
action as may be necessary to change its name and eliminate all reference to
the word "SCHRODER" in any form, and will no longer use such registered
service xxxx.
7. LIMITATION OF LIABILITY OF THE TRUST'S TRUSTEES. The Trustees of the
Trust and the shareholders of the Trust shall not be liable for any
obligations of the Fund or Trust under this Agreement, and the Adviser agrees
that, in asserting any rights or claims under this Agreement, it shall look
only to the assets and property of the Trust to which the Adviser's rights or
claims relate in settlement of such rights or claims, and not to the Trustees
of the Trust or the shareholders of the Trust.
8. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall
remain in force until the second anniversary of the initial effective date of
this Agreement (December 9, 1997) and from year to year thereafter, but only
so long as such continuance is approved at lease annually by: (1) the vote of
a majority of the Trustees of the Trust who are not parties to the Agreement
or interested persons of the Adviser or interested persons of any such party
(other than as Trustees of the Trust), cast in person at a meeting called for
the purpose of voting on such approval; and (2) the vote of either: (a) the
Board of Trustees of the Trust, or (b) a majority of the outstanding voting
securities of the Fund. This Agreement may be terminated at any time, without
payment of any penalty, by the Trust either by the vote of the Board of
Trustees of the Trust or by the vote of a majority of the outstanding voting
securities of the Fund on sixty (60) days' written notice to the Adviser, and
by the Adviser on sixty (60) days' written notice to the Trust. This
Agreement shall automatically terminate in the event of its assignment by
either party. In interpreting the provisions of this Section 8, the
definitions contained in Section 2(a) of the Investment Company Act
(particularly the definitions of "assignments," "interested person" and
"voting security") shall be applied.
9. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against which enforcement of the change,
waiver, discharge or termination is sought, and no amendment, transfer,
assignment, sale, hypothecation or pledge of this Agreement shall be
effective until approved by the vote of: (1) the Board of Trustees of the
Trust, including a majority of the Trustees who are not parties to this
Agreement or interested persons of the Adviser or interested persons of any
such party (other than as Trustees of the Trust), cast in person at a meeting
called for the purpose of voting on such approval; and (2) a majority of the
outstanding voting securities of the Fund.
10. NOTICE. Any notice or other communication required to be given to
this Agreement shall be in writing or by fax, with hard copy to follow, and
shall be effective upon receipt. Notices and communications shall be given
to: (1) the Trust at 000 Xxxxxxx Xxxxxx, 34th Floor,
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New York, New York 10019, Attention: Xx. Xxxxxxxxx Xxx; and (2) the Adviser
at c/o Schroder Investment Management North America Inc., 000 Xxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xx. Xxxxxxxxx Xxxxx.
11. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Delaware and the applicable provisions of the
Investment Company Act. To the extent applicable laws of the State of
Delaware, or any of the provisions herein, conflict with the applicable
provisions of the Investment Company Act, the latter shall control.
12. MISCELLANEOUS. 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. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
The Investment Adviser confirms that the Trust is a Non-private Customer
as defined in the rules of IMRO and is being treated with the same standard
of care as an employee benefit plan subject to regulation under the Employee
Retirement Income Security Act of 1974, as amended.
The Trust confirms that it has been provided with independent legal
advice on this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Investment Advisory Agreement to be executed as of September 15,
1999.
SCHRODER SERIES TRUST II
By: /S/ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
XXXXXXXX INVESTMENT MANAGEMENT
NORTH AMERICA INC.
By: /S/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Director
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