NON-CUSTODY INVESTMENT ADVISORY AGREEMENT
THIS
AGREEMENT is made this 8th day of
July, 2009, by and between XXXXXXXX
ALTERNATIVE ASSET TRUST, a Delaware trust, hereinafter called “Principal,” and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, hereinafter called
“Investment Advisor.”
WHEREAS,
Principal desires to employ the investment advisory services of Investment
Advisor and Investment Advisor desires to render such services to
Principal.
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants set
forth herein, the parties hereby mutually agree as follows:
I. Agreements and Covenants of
Investment Advisor.
Investment
Advisor agrees and covenants:
(a) To
review periodically certain property held by or on behalf of Principal from time
to time and identified in Exhibit A attached hereto or hereafter identified by
written notice from Principal to Investment Advisor (the
“Property”). Investment Advisor (i) shall direct the investment,
reinvestment and changes in the investment of the Property as it, in its sole
discretion, deems appropriate; provided, however, that such investment,
reinvestment and changes must be in accordance with the investment guidelines
set forth in Exhibit B attached hereto, which may be amended from time to time
upon the written agreement of parties without the need to further amend this
Agreement, (ii) shall manage the investments comprising the Property, and (iii)
shall, except as otherwise directed by Principal, use its best efforts to invest
all cash balances, dividends, interest and other income payments credited with
respect to the Property.
(b) That
Investment Advisor shall not have custody of the Property.
II. Agreements and Covenants of
Principal.
(a) To
promptly notify Investment Advisor or cause Investment Advisor to be notified of
any and all changes in the identity of the Property.
(b) To
provide such written authorizations as are necessary to custodians or trustees
of the Property and other persons in order for the Investment Advisor's
directions with respect to the Property to be carried out.
(c) To
furnish Investment Advisor or cause Investment Advisor to be furnished with such
information, authorization and documentation as it may from time to time require
to enable it to carry out its obligations under Paragraph I(a)
hereof.
(d) That
Investment Advisor is hereby appointed agent and attorney-in-fact for purposes
of carrying out its obligations under Paragraph I(a) hereof, with power and
authority to: (i) buy, sell, exchange, convert and otherwise trade in
any stocks, bonds and other securities; and (ii) perform any other acts
necessary to carry out its obligations under this Agreement; provided, however,
that such acts shall not include the authority to deliver or pay securities or
other Property to Investment Advisor.
(e) That
except as hereinafter provided, all notices to and agreements with Investment
Advisor hereunder shall be in writing signed by any two of the following
persons:
Xxxxxx X.
Xxxxx, General Counsel
Xxxxxxxx
& Company, Inc.
0000
Xxxxxx Xxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Facsimile:
000-000-0000
Xxxxxxx
X. Xxxxxxx, Chief Financial Officer
Xxxxxxxx
& Company, Inc.
0000
Xxxxxx Xxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Facsimile:
000-000-0000
Xxxxx X.
Xxxxxx, Chief Investment Officer
Xxxxxxxx
& Company, Inc.
0000
Xxxxxx Xxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Facsimile:
000-000-0000
Xxxxxxx
X. Xxxxx, Chief Executive Officer
Xxxxxxxx
& Company, Inc.
0000
Xxxxxx Xxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Facsimile:
000-000-0000
provided,
however, that the Principal may from time to time designate in writing any
person or organization who shall be authorized to deliver written notices or
agreements on behalf of Principal hereunder. In addition, Investment
Advisor shall be entitled to rely on and shall be protected in relying on any
verbal or telephonic advice or instruction which it in good faith believes to be
given by any two of the persons authorized above to give written instructions,
provided that any two persons listed above promptly confirm such instructions in
writing.
(f) To
indemnify and hold, and does hereby indemnify and hold, Investment Advisor
harmless for any loss, cost or other damage arising out of Investment Advisor's
complying with the terms hereof.
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(g) To
pay to Investment Advisor compensation for its services hereunder in an amount
to be agreed upon from time to time by the parties, or, in absence of such
agreement, to be determined from time to time by application of the current
rates then charged by Investment Advisor for accounts of similar size and
character.
(h) That
this Agreement shall be binding upon Principal and Principal's successors and
assigns.
III.
Management
Fee.
The
client agrees to pay Investment Advisor an annualized fee based on the
percentage of the principal amount of the Principal’s assets under management by
Investment Advisor, computed and accrued on the average daily market value
maintained in the account by the Principal. The percentage is
determined by the following scale:
|
Assets Under Management
|
Percentage
|
Related Fees
|
|
First
$200,000,000
|
.09%
|
$
180,000
|
|
Next
$300,000,000
|
.07%
|
$
210,000
|
|
Next
$500,000,000
|
.05%
|
$
250,000
|
|
Next
$500,000,000
|
.03%
|
$
150,000
|
|
All
Additional Assets
|
.02%
|
Based
on Total Amount of Additional
Assets
|
Investment
Advisor shall send to the Principal on a monthly basis an invoice which shows
the amount of the management fee, the average daily market value on which such
fee was based and the specific manner in which the fee was
calculated. The Principal reserves the right to use the average daily
market value provided by the custodian of the Property (the “Custodian”) to
confirm the accuracy of the Investment Advisor fees and, upon mutual agreement
of the parties, a fee calculation based on such information provided by the
Custodian may be used as the final determinant of payment amount. The
invoice is payable within 10 business days of receipt and the Principal will
notify the Investment Advisor within five business days after receipt of the
statement of any objections or exceptions.
IV. Limitation of
Liability.
Investment
Advisor shall have no liability or responsibility:
(a) To
take any action hereunder, other than as specified in Paragraph I(a)
hereof.
(b) For
any depreciation in principal of any Property or for any loss or damage
resulting from any investment, reinvestment or change of the Property directed
by Investment Advisor hereunder, except to the extent caused by Investment
Advisor's negligence or willful misconduct.
3
(c) To
safekeep, inspect or verify the existence of the Property, and Investment
Advisor shall be entitled to rely exclusively on the information set forth in
Exhibit A, Exhibit B and the information provided to it pursuant to Paragraph
II(c) hereof.
(d) For
assuming that the authority of any and all persons certified to it under the
seal of Principal and designated by Principal pursuant to Paragraph
II(c) hereof, unless provided otherwise in such designation, shall be continuing
until Principal shall deliver a written revocation of such
authority.
V. Termination.
This
Agreement may be terminated at any time by either party upon delivery of written
notice of such termination to the other party. Paragraphs II(f) and
II(g) shall survive termination of this Agreement.
VI. Notices.
Any
notice to be delivered hereunder shall be in writing and shall be effective upon
receipt at the addresses set forth on the signature page hereof, or at such
other address specified in writing by the addressee.
VI. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware.
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IN
WITNESS WHEREOF, the parties hereto have caused their names to be hereto
subscribed by their respective Presidents or Vice Presidents and their corporate
seals to be hereto affixed by their respective Secretaries or Assistant
Secretaries, all done in duplicate as of the day and year first above
written.
PRINCIPAL
XXXXXXXX
ALTERNATIVE ASSET TRUST
by
Xxxxxxxx & Company, Inc., its Managing Owner
By:
/s/Xxxxxx X.
Xxxxx By:
/s/ Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxx X.
Xxxxx Name:
Xxxxxxx X. Xxxxxxx
Title:
General
Counsel Title:
Chief Financial Officer
Address:
Xxxxxxxx
& Company, Inc.
0000
Xxxxxx Xxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Facsimile:
000-000-0000
Attention:
Xxxxxx X. Xxxxx
General Counsel
INVESTMENT
ADVISOR
WILMINGTON
TRUST COMPANY
By: /s/ Xxxxxxxx X.
X’Xxxxx
Name: Xxxxxxxx X. X’Xxxxx
Title: Vice President
Address:
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-0000
Attention: Xxxxxxxx X.
X’Xxxxx
Telecopier
No.: (000) 000-0000
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EXHIBIT
A
LIST OF
PROPERTY
EXHIBIT
B
INVESTMENT
GUIDELINES
|
1.
|
The
investment, reinvestment and changes in the investment of the Property
must be done in accordance with the Xxxxxxxx & Company, Inc. &
Xxxxxxxx & Company Investment Advisor Cash Management Policy (the
“Policy”), a current copy of which has been delivered to the Investment
Advisor. In the event the Policy is changed, Principal shall
provide the Investment Advisor with thirty (30) days written notice prior
to the effective date of such
change.
|
