EXHIBIT 10.18
SPECTRUM ASSET MANAGEMENT, INC.
CLIENT AGREEMENT AND TRADING AUTHORIZATION
This Agreement sets forth the terms and conditions upon which Spectrum Asset
Management, Inc. (hereinafter referred to as the "Advisor") shall act as agent
and investment manager with full discretionary authority to buy, sell and trade
in preferred stocks, bonds, commodity futures and/or contracts relating to the
same, on behalf of Xxxxxx Group Inc. (hereinafter referred to as the "Client").
1. The Client acknowledges its receipt and understanding of the Advisor's
Disclosure Document to prospective Clients which, except as otherwise
provided, is incorporated by reference herein and made a part hereof;
2. In consideration of the Advisor's rendering its services, the Client
shall pay the Advisor a quarterly fee, to be billed at the end of each
calendar quarter, based on the average daily equity value of assets
under management during such quarter according to the following
schedule:
Net Asset Value Annualized Fee Rate
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$2-20 million 0.45%
over $20 million 0.40%
Upon termination of this Agreement, the quarterly fee shall be pro
rated.
3. In the absence of specific written instructions from Client to the
contrary, Advisor will maintain, either directly or through a clearing
broker designated by Advisor, custody of the cash, securities and
other investments (the "Assets") in the Client's account and will
receive and credit to the account all interest, dividends, and other
distributions received by the Advisor on the Assets in the account.
Advisor, either directly or through its clearing broker, shall provide
Client with monthly statements of Client's account and such other
information as Client shall request from time to time.
4. The Client shall establish and maintain a commodity futures account
and/or options account with FIMAT Futures USA, Inc.
5. In the absence of specific written instructions from Client to the
contrary, Advisor will provide brokerage and execution services to the
Client and shall have discretion to issue directly to other brokers or
dealers orders for the purchases and sales of securities, commodity
futures and contracts relating to the same on behalf of Client's
account. Advisor shall, either directly or through other brokers or
dealers, execute transactions for the purchase or sale of securities
and other investments in the Client's account provided it is able to
provide best execution.
Advisor will send to the Client confirmations of all transactions it
executes for the Client's account and shall and prepare and supply to
the Client monthly account statements summarizing such transactions.
To the extent Advisor uses other brokers or dealers to execute
transactions on behalf of the Client's account, Advisor shall instruct
such other brokers and dealers to send to the Client confirmations for
all such transactions and monthly account statements summarizing such
transactions. The Client hereby ratifies and confirms that the Advisor
may effect transactions in which it acts as agent for the buyer and
the seller and consents to this arrangement heretofore and hereafter.
This consent may be revoked at any time by written notice to the
Advisor.
6. All transactions executed for the Client's accounts shall be at the
Client's risk and no express or implied assurance of profit nor
guarantee against loss has been made to the undersigned Client, and
accordingly, it is hereby confirmed that the Advisor has not warranted
in any way that the Advisor's program will attain successful
performance results.
7. The Client understands that the Advisor has not been retained for the
purpose of providing tax advice. The Advisor does not assume
responsibility for tax-related matters and the Client's accounting
that pertain to the transactions effectuated for the Client's
account(s).
8. This authorization is a continuing one and shall remain in full force
and effect until revoked by the Client by written notice to Spectrum
Asset Management, Inc., 0 Xxxx Xxxxx Xxxx, Xxxxxxxx, XX 00000,
attention Xxxx Xxxx. The Client may terminate the Advisor's management
of its account(s) and direct the close-out of its account(s), and the
withdrawal of funds, at any time, upon five (5) days' written notice
to the Advisor. Subsequent to the date of receipt by Advisor of such
notice of termination, the Client acknowledges that Advisor shall have
no responsibility or liability, including losses resulting in the
maintaining of positions in existence after the effective date of the
termination. Similarly, the Advisor may terminate its management
services at any time upon reasonable (30 days) notice to the Client.
9. This authorization granted by the Client in this Agreement shall inure
to the benefit of the Advisor and its successors and/or assigns,
notwithstanding any change at any time in the personnel of the Client,
the Advisor or their respective successors and assigns.
10. The Advisor agrees to provide the Client with monthly performance
evaluation reports within five (5) business days of the end of the
month. These reports will include a detailed transaction log, dividend
schedule, portfolio position reports, performance evaluation and
summary.
11. In accordance with the provisions of the Investment Advisor's Act of
1940, as amended, this Agreement may not be assigned, transferred,
sold or in any manner
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hypothecated or pledged by the Advisor without the prior written
consent of the Client. The Advisor agrees to maintain strict
confidence regarding all aspects of the Client's account(s), its
financial condition and business affairs.
12. The Client hereby confirms it is fully empowered and authorized to
enter into this Agreement and shall be binding on the Client, its
successors, administrators and assigns and governed by the laws of the
state of New York. The Client agrees to retain the Advisor and to
establish and maintain managed hedged accounts for securities options
and commodity trading which it has independently determined to be in
accordance with its Certificate of Incorporation and By-Laws and to
appropriately meet its financial objectives. Submitted herewith for
execution by the Client, are certain forms required by FIMAT Futures
USA, Inc. and the Advisor, including but not limited to: (i) this
Client Agreement and Trading Authorization; (ii) Discretionary Account
Disclosure Statement; (iii) all forms in the Futures Account Agreement
for Institutional Customers;
13. Advisor represents and warrants that it is, and shall remain, duly
registered as an investment adviser under the Investment Advisers Act
of 1940, as amended, and as a broker-dealer under the Securities and
Exchange Act of 1934, as amended.
14. Adviser agrees to provide its best judgment and efforts in rendering
the services set forth in this Agreement, including without limitation
advisory and brokerage services, and the parties agree that the
standard of care imposed upon Adviser, its employees and agents, is to
act without negligence and in good faith with the care, skill,
prudence and diligence under the circumstances then prevailing that a
prudent investor, acting in a like capacity, would undertake and to
comply with all other duties of a fiduciary. Advisor shall manage and
invest the funds in Client's account in accordance with the investment
guidelines attached hereto as Exhibit A, as may be amended by Client
from time to time.
15. Advisor guarantees that all services provided under this Agreement
will be "Year 2000 compliant" by December 31, 1998, meaning that all
services are designed to operate without regard to the turning of the
century and that any process involved in these services which involves
dates will operate in a manner that takes into account dates occurring
before and after the turning of the century and that any process
involved in these services creates, processes and stores dates in a
format that accurately reflects whether the date is before or after
the year 2000.
16. The Client and its designated auditors have the right to examine,
audit and review all documents, reports, transaction confirmations and
other materials relating to the Advisor's management of the account at
any time on reasonable prior notice. The Client does not waive any
rights available under federal and State statutes.
17. The Client authorizes the Advisor to transfer money (but not
securities) at any time from the Client's Custody Account and to and
from FIMAT Futures USA,
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Inc. Customer's Segregated Funds Account from time to time to meet
variation margin calls that may arise from cross-hedging the preferred
portfolio.
18. Any disputes relating to or arising out of this Agreement or Client's
transactions with Advisor shall be subject to arbitration before the
National Association of Securities Dealers, Inc., at its New York
District Headquarters, presently located at 00 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000.
Xxxxxx & Co. Inc.
Royal Executive Park
0 Xxxxxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxxxxx 3/16/98
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Signature/Title Date
SPECTRUM ASSET MANAGEMENT, INC.
/s/ Xxxx Xxxx 3/18/98
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Signature/Title Date
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