Money Manager Agreement
Exhibit
99.77Q1 BIM Money Manager
This agreement (the “Money Manager
Agreement”) is between the TIFF Investment Program, Inc. (“TIP”), a Maryland
corporation, for its TIFF Multi-Asset Fund, and such other of its Funds as TIP
and the Manager (as defined below) may agree upon from time to time (the
“Fund”), and Brookfield Investment Management, Inc. (the “Manager”), an
investment adviser registered under the Investment Advisers Act of 1940, as
amended (the “Advisers Act”), and is effective as of October 1, 2009 (the
“Effective Date”).
Recitals
TIP is an open-end management
investment company registered under the Investment Company Act of 1940, as
amended (the “1940 Act”); and
The Fund wishes to retain the Manager
to render advisory services to the Fund and the Manager is willing to render
those services.
The parties therefore agree as
follows:
1.Managed Assets
The Manager will provide investment
management services with respect to assets placed with the Manager on behalf of
the Fund from time to time. Such assets, as changed by investment,
reinvestment, additions, disbursements of expenses, and withdrawals, are
referred to in this Agreement as the “Managed Assets.” The Fund may
make additions to or withdraw all or any portion of the Managed Assets from this
management arrangement at any time. In addition, the Manager may
elect from time to time to make use of other available fund assets in addition
to the Managed Assets (the principal amount of such other fund assets,
irrespective of any gains or losses on such assets, shall be referred to as
“Additional Assets”) for investment purposes, for collateral purposes, or for
such other purposes as shall be agreed from time to time by the Manager and the
Fund or TIFF Advisory Services, Inc. (“TAS”). If so determined by the
Fund or TAS, the Additional Assets shall bear interest at a rate to be agreed by
TAS and the Manager from time to time. In addition, if so determined
by the Fund or TAS, any accrued interest on such Additional Assets that remains
unpaid after the close of a month-end, shall bear interest at a rate to be
agreed by TAS and the Manager from time to time. The Additional
Assets shall be returned to the Fund, and any accrued interest shall be paid out
of the Managed Assets to the Fund, promptly upon request or otherwise in
accordance with the terms or procedures set by the Fund or TAS. The
Additional Assets, and all gains or losses on the Additional Assets, shall be
deemed to be Managed Assets for all purposes under this Agreement; provided,
however, that for purposes of calculating the Management Fee payable to the
Manager pursuant to Section 6 of this Agreement and Exhibit A, the Additional
Assets shall be excluded from Managed Assets.
2.Appointment and Powers of Manager;
Investment Approach
(a)Appointment. TIP, acting on
behalf of the Fund, hereby appoints the Manager to manage the Managed Assets for
the period and on the terms set forth in this Agreement. The Manager
hereby accepts this appointment and agrees to render the services herein
described in accordance with the requirements described in Section 3(a).
(b)Powers. Subject to the
supervision of the board of directors of TIP and subject to the supervision of
TIFF Advisory Services, Inc. (“TAS”) as Investment Adviser to the Fund, the
Manager shall direct investment of the Managed Assets in accordance with the
requirements of Section 3(a). The Fund grants the Manager authority
to:
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(i)acquire
(by purchase, exchange, subscription, or otherwise), to hold, and to
dispose of (by sale, exchange, or otherwise) securities and other
investments;
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(ii)determine
what portion of the Managed Assets will be held uninvested;
and
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(iii)enter
into such agreements and make such representations (including
representations regarding the purchase of securities for investment) as
may be necessary or proper in connection with the performance by Manager
of its duties hereunder.
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(c)Power of Attorney. To enable
the Manager to exercise fully discretion granted hereunder, TIP appoints the
Manager as its attorney-in-fact to invest, sell, and reinvest the Managed Assets
as fully as TIP itself could do. The Manager hereby accepts this
appointment.
(d)Voting. The Manager shall be
authorized to vote on behalf of the Fund any proxies relating to the Managed
Assets, provided, however, that the Manager shall comply with any instructions
received from the Fund as to the voting of securities and handling of
proxies.
(e)Independent
Contractor. Except as expressly authorized herein, the Manager shall
for all purposes be deemed to be an independent contractor and shall have no
authority to act for or to represent TIP, the Fund, or TAS in any way, or
otherwise to be an agent of any of them.
(f)Reporting. The Manager shall
furnish to TIP upon reasonable request such information that TIP may reasonably
require to complete documents, reports, or regulatory filings.
3.Requirements; Duties
(a)Requirements. In performing services
for the Fund and otherwise discharging its obligations under this Agreement, the
Manager shall act in conformity with the following requirements (the
“Requirements”):
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(i)the
1940 Act, the Internal Revenue Code of 1986, as amended, and all other
applicable federal and state laws and regulations which apply to the
Manager in conjunction with performing services for the Fund, if
any;
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(ii)
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TIP’s
Registration Statement under the 1940 Act and the Securities Act of 1933,
as amended, on Form N-1A as filed with the Securities and Exchange
Commission relating to the Fund and the shares of common stock in the
Fund, as such Registration Statement may be amended from time to time (the
“Registration Statement”);
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(iii)the
Manager’s Investment Guidelines (appended to this Agreement as Exhibit B),
which may be amended from time to time through mutual agreement by TAS and
the Manager;
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(iv)written
instructions and directions of the board of directors of TIP;
and
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(v)written
instructions and directions of TAS.
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(b)Responsibility with Respect to Actions of
Others. TIP may place the investment portfolio of each of its funds,
including the Fund, with one or more investment managers. To the
extent the applicability of, or conformity with, the Requirements depends upon
investments made by, or activity of, the managers other than the Manager, the
Manager agrees to comply with such Requirements: (i) to the extent that such
compliance is within the Manager’s Investment Guidelines; and (ii) to the extent
that the Manager is provided with information sufficient to ascertain the
applicability of such Requirements. If it appears to the Fund at any
time that the Fund may not be in compliance with any Requirement and the Fund or
TAS so notifies the Manager, the Manager shall promptly take such actions not
inconsistent with applicable law as the Fund or TAS may reasonably specify to
effect compliance.
(c)Responsibility with Respect to Performance of
Duties. In performing its duties under this Agreement, the Manager
will act solely in the interests of the Fund and shall use reasonable care and
its best judgment in matters relating to the Fund. The Manager will
not deal with the Managed Assets in its own interest or for its own
account.
4.Recordkeeping and
Reporting
(a)Records. The Manager shall maintain
proper and complete records relating to the furnishing of investment management
services under this Agreement, including records with respect to the securities
transactions for the Managed Assets required by Rule 31a-1 under the 1940
Act. All records maintained pursuant to this Agreement shall be
subject to examination by the Fund and by persons authorized by it during
reasonable business hours upon reasonable notice. Records required by
Rule 31a-1 maintained as specified above shall be the property of the Fund; the
Manager will preserve such records for the periods prescribed by Rule 31a-2
under the 1940 Act and shall surrender such records promptly at the Fund's
request. Upon termination of this Agreement, the Manager shall
promptly return records that are the Fund's property and, upon demand, shall
make and deliver to the Fund true and complete and legible copies of such other
records maintained as required by this Section 4(a) as the Fund may
request. The Manager may retain copies of records furnished to the
Fund.
(b)Reports to Custodian. The Manager
shall provide to the Fund's custodian (the “Custodian”) and to the Fund, on each
business day, information relating to all transactions concerning the Managed
Assets.
(c)Other Reports. The Manager shall
render to the board of directors of TIP and to TAS such periodic and special
reports as the board or TAS may reasonably request.
5.Purchase and Sale of
Securities
(a)Selection of Brokers. The Manager
shall place all orders for the purchase and sale of securities on behalf of the
Fund with brokers or dealers selected by the Manager in conformity with the
policy respecting brokerage set forth in the Registration
Statement. Neither the Manager nor any of its officers, employees, or
any of its “affiliated persons,” as defined in the 1940 Act, will act as
principal or receive any compensation in connection with the purchase or sale of
investments by the Fund other than the management fees provided for in Section 6
hereof.
In
placing such orders, the Manager will give primary consideration to obtaining
the most favorable price and efficient execution reasonably available under the
circumstances and in accordance with applicable law. In evaluating the terms
available for executing particular transactions for the Fund and in selecting
broker-dealers to execute such transactions, the Manager may consider, in
addition to commission cost and execution capabilities, those factors that it
deems relevant, such as the financial stability and reputation of broker-dealers
and the brokerage and research services (as those terms are defined in Section
28(e) of the Securities Exchange Act of 1934, as amended) provided by such
broker-dealers. The Manager is authorized to pay a broker-dealer who provides
such brokerage and research services a commission for executing a transaction
which is in excess of the amount of commission another broker-dealer would have
charged for effecting that transaction if the Manager determines in good faith
that such commission is reasonable in relation to the value of the brokerage and
research services provided by such broker-dealer in discharging responsibilities
with respect to the Fund or to other client accounts as to which it exercises
investment discretion.
(b)Aggregating Orders. On occasions
when the Manager deems the purchase or sale of a security to be in the best
interest of the Fund as well as other advisory clients of the Manager, the
Manager, to the extent permitted by applicable laws and regulations, may, but
shall be under no obligation to, aggregate the securities to be so sold or
purchased in order to obtain the most favorable price or lower brokerage
commissions and efficient execution. In such event, allocation of
securities so purchased or sold, as well as the expense incurred in the
transaction, will be made by the Manager in the manner it considers to be most
equitable and consistent with its fiduciary obligations to the Fund and its
other clients.
(c)The Custodian. All Managed Assets, including
cash and equivalents, shall be held by the Custodian. The Manager
shall not be liable to the Fund for any action or omission of Custodian;
provided, however, that where the Custodian’s act or omission is required by,
and taken in reliance upon, improper instructions given to the Custodian by a
properly authorized representative of the Manager, the Manager shall be liable
for the act or omissions of the Manager. “Properly authorized” shall
mean those representatives of the Manager who are authorized, pursuant to the
Fund’s custody agreement with the Custodian, to give instructions to the
Custodian under such custody agreement. The Fund agrees to be
responsible for any custodial fees.
6.Management Fees; Expenses
(a)Management Fees. Exhibit A attached hereto sets
out the fees to be paid by the Fund to the Manager each month on or before the
last business day of the month that follows the end of each rolling 12-month
measurement period described in Exhibit A. The applicable fee rate
will be applied to the average daily net assets (gross of expenses except
custodian transaction charges and any interest accrued in respect of Additional
Assets) of the Managed Assets (exclusive of the Additional Assets) for the
applicable rolling 12-month measurement period, computed as described in the
Fund’s Registration Statement, and the result divided by 12 to determine the fee
payable for each month.
(b)Expenses. The Manager shall furnish
at its own expense all office facilities, equipment and supplies, and shall
perform at its own expense all routine and recurring functions necessary to
render the services required under this Agreement including administrative,
bookkeeping and accounting, clerical, statistical, and correspondence
functions. The Manager shall not have responsibility for calculating
the Net Asset Value of the Fund’s portfolio, but must daily review the pricing
of the Managed Assets. The Fund shall pay directly, or, if the
Manager makes payment, reimburse the Manager for, (i) custodial fees for the
Managed Assets, (ii) brokerage commissions, issue and transfer taxes and other
costs of securities transactions to which the Fund is a party, including any
portion of such commissions attributable to research and brokerage services; and
(iii) taxes, if any, payable by the Fund. In addition, the Fund shall
pay directly, or, if the Manager makes payment, reimburse the Manager for, such
non-recurring special out-of-pocket costs and expenses as may be authorized in
advance by the Fund.
7.Non-Exclusivity of
Services
The Manager is free to act for its own
account and to provide investment management services to others. The
Fund acknowledges that the Manager and its officers and employees, and the
Manager's other clients, may at any time have, acquire, increase, decrease or
dispose of positions in the same investments which are at the same time being
held, acquired or disposed of under this Agreement for the
Fund. Neither the Manager nor any of its officers or employees shall
have any obligation to effect a transaction under this Agreement simply because
such a transaction is effected for his or its own account or for the account of
another client. The Fund agrees that the Manager may refrain from
providing any advice or services concerning securities of companies for which
any officers, directors, partners or employees of the Manager or any of the
Manager’s affiliates act as financial adviser, investment manager or in any
capacity that the Manager deems confidential, unless the Manager determines in
its sole discretion that it may appropriately do so. The Fund
appreciates that, for good commercial and legal reasons, material nonpublic
information which becomes available to affiliates of the Manager through these
relationships cannot be passed on to the Fund.
8.Sub-Advisers
Subject
to the receipt of express prior written approval of TAS and, if necessary, the
board of directors of the Fund, the Manager may, at its sole expense, select and
contract with one or more investment advisers registered under the Advisers Act
(“Sub-Advisers”) to perform some or all of the services for the Fund for which
it is responsible under this Agreement. The Manager will provide TAS
with written notice at least 30 days prior to entering into or amending any such
agreement with a Sub-Adviser. The Manager will compensate any
Sub-Adviser for its services to the Fund. The Manager will continue
to have responsibility for all advisory services furnished by any
Sub-Adviser.
9.Liability
The Manager shall not be liable to the
Fund, TIP, or TAS for any error of judgment, but the Manager shall be liable to
the Fund for any loss resulting from willful misfeasance, bad faith, or gross
negligence by the Manager in providing services under this Agreement or from
reckless disregard by the Manager of its obligations and duties under this
Agreement. The Fund agrees to indemnify and hold the Manager harmless
against all damages, costs and expenses, including reasonable attorney's fees,
incurred by it in the course of any threatened or actual litigation,
arbitrations or administrative proceedings brought by a shareholder,
beneficiary, governmental agency or any other person pertaining to the Managed
Assets or otherwise relating to this Agreement; provided, however, that the Fund
shall not be liable in any such case to the extent that, in the final judgment
of a court of competent jurisdiction, it is adjudicated that (i) the Manager’s
action or omission was not prudent or otherwise violated the provisions of this
Agreement or applicable law, or (ii) the Manager’s action or omission
constituted willful misfeasance, bad faith, or gross negligence with respect to,
or reckless disregard of, the Manager’s obligations and duties under this
Agreement.
10.Representations and
Undertakings
(a)The Manager hereby confirms to the Fund
that the Manager is registered as an investment adviser under the Advisers Act,
that it has full power and authority to enter into and perform fully the terms
of this Agreement and that the execution of this Agreement on behalf of the
Manager has been duly authorized and, upon execution and delivery, this
Agreement will be binding upon the Manager in accordance with its
terms.
(b)The Manager represents that it complies
in all material respects with all applicable laws, both federal and
state.
(c)The Manager hereby represents that it has
implemented policies and procedures that will prevent the disclosure by it, its
employees or its agents of the Fund’s portfolio holdings to any person or entity
other than TAS, the Fund’s custodian, broker/dealers executing trades placed by
the Manager on behalf of the Fund, any Sub-Advisers (or any affiliates of the
Sub-Advisers which provide advisory or research services to such Sub-Adviser) or
other persons expressly designated by or approved by TAS. The Manager
agrees that prior to seeking any such approval from TAS, it will enter into a
confidentiality agreement with such party to whom it desires to disclose the
Fund’s portfolio holdings meeting the requirements of the Fund’s Portfolio
Holdings Disclosure Policies and Procedures.
(d)TIP hereby confirms to the Manager that it has
full power and authority to enter into this Agreement and that the execution of
this Agreement on behalf of the Fund has been duly authorized and, upon
execution and delivery, this Agreement will be binding upon TIP in accordance
with its terms.
(e)TIP acknowledges receipt of Part II of the
Manager’s Form ADV and Commodity Trading Advisor (CTA) Disclosure Document (if
applicable).
(f) TIP represents that TIP and the Fund
are in material compliance with all applicable state and federal securities laws
and regulations.
(g) To facilitate the Manager’s fulfillment of its
obligations under this Agreement, TIP undertakes the following:
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(i)
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TIP
will promptly provide the Manager with amendments or supplements, if any,
to TIP’s prospectus or Statement of Additional Information applicable to
the Managed Assets;
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(ii)
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TIP
will promptly notify the Manager expressly in writing of changes, if any,
in the fundamental and non-fundamental investment policies of the Managed
Assets; and
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(iii)
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TIP
will promptly provide the Manager with guidelines and procedures, if any,
applicable to the Manager or the Managed Assets adopted from time to time
by the board of directors of TIP and will promptly provide the Manager
copies of any amendments thereto.
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11.Term
This Agreement shall continue in effect
for a period of one (1) year from the date hereof and shall thereafter be
automatically renewed for successive periods of one (1) year each, provided such
renewals are specifically approved at least annually in conformity with the
requirements of the 1940 Act; provided, however, that this Agreement may be
terminated without the payment of any penalty, by (a) the Fund, if a decision to
terminate is made by the board of directors of TIP or by a vote of a majority of
the Fund’s outstanding voting securities (as defined in the 1940 Act), or (b) by
the Manager, in each case with at least 30 days' written notice from the
terminating party and on the date specified in the notice of
termination.
This Agreement shall terminate
automatically in the event of its assignment (as defined in the 1940
Act).
12.Amendment
Except as otherwise provided in this
Agreement, this Agreement may be amended by mutual consent, but the consent of
the Fund must be approved in conformity with the requirements of the 1940 Act
and any order of the Securities and Exchange Commission that may address the
applicability of such requirements in the case of the Fund.
13.Notices
Notices or other communications
required to be given pursuant to this Agreement shall be deemed duly given when
delivered in writing or sent by fax or three days after mailing registered mail
postage prepaid as follows:
Fund:TIFF Investment Program, Inc.
c/o TIFF Advisory Services,
Inc.
Attn: General
Counsel
Four Tower Bridge
000 Xxxx Xxxxxx Xxxxx, Xxxxx
000
Xxxx Xxxxxxxxxxxx,
XX 00000
Fax:000-000-0000
Manager:Brookfield Investment Management,
Inc.
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx,
XX 00000-0000
Fax:000.000.0000
Each party may change its address by
giving notice as herein required.
14.Sole Instrument
This instrument constitutes the sole
and only agreement of the parties to it relating to its object and correctly
sets forth the rights, duties, and obligations of each party to the other as of
its date. Any prior agreements, promises, negotiations, or
representations not expressly set forth in this Agreement are of no force or
effect.
15.Counterparts
This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall be deemed to constitute one and the same instrument.
16.Applicable Law
This Agreement shall be governed by,
and the rights of the parties arising hereunder construed in accordance with,
the laws of the Commonwealth of Pennsylvania without reference to principles of
conflict of laws. Nothing herein shall be construed to require either
party to do anything in violation of any applicable law or
regulation.
17.Confidential Information
Any information or recommendations
supplied by any party to this Money Manager Agreement, which are not otherwise
in the public domain or previously known to another party in connection with the
performance of obligations hereunder, including securities or other assets held
or to be acquired by the Fund, transactions in securities or other assets
effected or to be effected on behalf of the Fund, or financial information or
any other information relating to a party to this Agreement, are to be regarded
as confidential (“Confidential Information”) and held in the strictest
confidence.
No party
may use or disclose to others Confidential Information about another party,
except solely for the legitimate business purposes of the Fund for which the
Confidential Information was provided; as may be required by applicable law or
rule or compelled by judicial or regulatory authority having competent
jurisdiction over the party; or as specifically agreed to in writing by the
other party to which the Confidential Information pertains; provided, however,
the Manager may disclose Confidential Information to any Sub-Advisers (or any
affiliates of the Sub-Advisers which provide advisory or research services to
such Sub-Adviser) for the legitimate business purposes of the Fund for which the
Confidential Information was provided. Further, no party may trade in any
securities issued by another party while in possession of material non-public
information about that party. Lastly, the Manager may not consult
with any other money managers for the Fund (other than any Sub-Adviser or any
affiliates of the Sub-Advisers which provide advisory or research services to
such Sub-Adviser) about transactions in securities or other assets of the Fund,
except for purposes of complying with the 1940 Act or SEC rules or regulations
applicable to the Fund. Nothing in this Agreement shall be construed to prevent
the Manager from lawfully giving other entities investment advice about, or
trading on their behalf in, shares issued by the Fund or securities or other
assets held or to be acquired by the Fund.
In witness whereof, the
parties hereto execute this Agreement on and make it effective on the Effective
Date specified in the first paragraph of this Agreement.
TIFF
Investment Program, Inc.,Brookfield Investment Management,
Inc.
on
behalf of the Fund
___/s/
Xxxx X. Lezon________________/s/ Xxx X.
Redding___________
SignatureSignature
___Dawn
X. Xxxxx, CFO____________Kim X. Xxxxxxx, Co-CEO______
Print
Name/TitlePrint Name/Title
Exhibit
99.77Q1 BIM Money Manager
Exhibit A
to
Money
Manager Agreement between
Brookfield
Investment Management, Inc. and TIFF Investment Program, Inc.
Fee
Calculation
Compensation*
As compensation for the services
performed and the facilities and personnel provided by the Manager for TIFF
Multi-Asset Fund pursuant to this Money Manager Agreement, the Fund will pay to
the Manager a fee according to the following formula:
100 bps +
0.20 x (Excess Return – 250 bps); floor = 50 bps, cap = 250 bps
Fee
Schedule*
The Manager will earn a fee equal to
1/12 of the formula set forth in “Compensation” above based on (i) the previous
12 calendar months’ (starting on the first day and ending on the last day in
such 12-month period) excess performance times (ii) the average daily assets for
the previous 12 months (such average to be calculated with respect to the
12-month period that begins 1 day prior to the first day, and ends 1 day prior
to the last day, of the 12-month period described in clause
(i)).
*This new Agreement has been entered
into following a mutually agreed termination of the previous agreement between
the parties, dated as of November 16, 2007, and shall not be considered an early
termination under the provisions of the previous agreement. The compensation and
fee schedule that were in effect at the time of the termination of the previous
agreement and the compensation and fee schedule set forth herein are identical,
and the fees payable to the Manager hereunder shall be calculated using the
applicable measuring periods as though there was no
termination.
Certain
Defined Terms
“Excess Return” shall mean the
return of the Manager that exceeds the return of the benchmark, the MSCI US REIT
index.
“Managed Assets” shall mean the portion
of the Fund’s assets allocated to the Manager.
All
capitalized terms used but not defined in this Exhibit A shall have the meanings
ascribed to them in the Money Manager Agreement.
Early
Termination
If the
Manager ceases to render services hereunder at any time, the Manager shall be
entitled to a fee for services rendered hereunder for the period for which it
has not yet received compensation equal to 50 bps (if termination is by the
Manager) or 75 bps (if termination is by the Fund) based on the average daily
Managed Assets for the period, on or about the tenth day of the month following
the month in which the Manager ceased to render services.
Exhibit B
to
Money
Manager Agreement between
Brookfield
Investment Management, Inc. and TIFF Multi-Asset Fund
Manager’s
Investment Guidelines
Investments
for the Managed Assets will be concentrated primarily in real estate related
securities, including securities of companies whose principal activities include
development, ownership, construction, management or sale of real estate in the
United States or Canada. It is currently anticipated that Manager
will invest the Managed Assets primarily in shares of real estate investment
trust (“REITs”). REITs are generally classified as Equity REITs,
Mortgage REITs and Hybrid REITs. Equity REITs generally invest the
majority of their assets in real property and derive their income primarily from
rents. Mortgage REITs generally invest the majority of their assets
in loans secured by real estate and derive their income primarily from interest
payments. Hybrid REITs generally combine the characteristics of
Equity and Mortgage REITs. Manager intends to invest primarily in
Equity REITs. Manager may invest from time to time in: (i) Mortgage
or Hybrid REITs; and (ii) other real estate industry companies.
Manager
shall have sole and complete discretion over the investment and reinvestment of
the Managed Assets from time to time; provided, however, that not more than 15%
of the Managed Assets (determined based upon market values at the time of
purchase) shall be invested in securities of any one issuer and not more than
10% of the Managed Assets (determined based upon market values at the time of
purchase) shall be invested in cash or cash
equivalents.
If, at
any time after the purchase of securities, the Fund is not in compliance with
the foregoing restrictions due to fluctuating market values, subsequent
transactions, or any other cause, Manager shall, as soon as reasonably
practicable and prudent, rebalance the Managed Assets to bring the same into
compliance with such restrictions. There will be no sector
limitations within the real estate securities market.
