INVESTMENT MANAGEMENT CONTRACT BETWEEN HILLVIEW INVESTMENT TRUST II AND HILLVIEW CAPITAL ADVISORS, LLC MANAGEMENT CONTRACT
Exhibit
EX-99.d.7
BETWEEN
AND
HILLVIEW
CAPITAL ADVISORS, LLC
MANAGEMENT
CONTRACT
Contract
made as of August 12, 2005, between, Hillview Investment Trust II, a Delaware
business trust (“Trust”) on behalf of the REMS Real Estate Value-Opportunity
Fund (the “Fund”), and Hillview Capital Advisors, LLC, a Delaware limited
liability company (the “Manager”).
WHEREAS
the Trust is registered under the Investment Company Act of 1940, as amended
(“1940 Act”) as an open-end management investment company; and
WHEREAS
the Trust, on behalf of the Fund, has entered into an Investment Advisory
Agreement dated December 12, 2002 (“Advisory Agreement”) with Real Estate
Management Services Group, LLC (the “Adviser”); and
WHEREAS
the Trust desires to retain the Manager as investment manager to furnish certain
management services to the Trust and the Fund, and the Manager is willing to
furnish such services;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, it is agreed between the parties hereto as follows:
1. Appointment
and Acceptance. The Trust hereby appoints the Manager as investment manager
for
the period and on the terms set forth in this Contract. The Manager accepts
such
appointment and agrees to render the services herein set forth, for the
compensation herein provided.
Duties
as
Investment Manager.
The
Manager will oversee the provision of administration, custodial, accounting,
bookkeeping, transfer and dividend disbursing agency or similar services to
the
Fund by any entity selected by the Trust’s Board of Trustees (“Board”) to
perform such services.
The
Manager will oversee the monitoring of compliance of the Adviser with the
investment objective, policies and restrictions of the Fund as well as
compliance with the 1940 Act, the rules thereunder, and all applicable federal
and state securities laws and regulations, and review and report to the Board
on
such compliance and on the services described in paragraph 2(a) hereof as
1
overseen
by the Manager. However, the Manager shall not be responsible for ensuring
the
Fund’s compliance with applicable federal and state securities laws and
regulations.
On
the
Manager’s own initiative, the Manager will apprise, or cause the Adviser to
apprise, the Trust of important developments materially affecting the Fund
and
will furnish the Trust, from time to time, with such information as may be
appropriate for this purpose. Further, the Manager agrees to furnish to the
Board such periodic and special reports as the Board may reasonably
request.
The
Manager will furnish to the Fund, at its own expense and without remuneration
from or other cost to the Fund, the following:
Office
Space. The Manager will provide office space in the offices of the Manager
or in
such other place as may be reasonably agreed upon by the parties hereto from
time to time;
Personnel.
The Manager will provide necessary executive and other personnel, including
personnel for the performance of clerical and other office functions, exclusive
of those functions: (A) related to and to be performed under the Trust’s
contract or contracts for administration, custodial, accounting, bookkeeping,
transfer and dividend disbursing agency or similar services by any entity,
including the Manager or its affiliates, selected to perform such services
under
such contracts; and (B) related to the services to be provided by the Adviser
pursuant to the Advisory Agreement; and
Preparation
of Prospectus and Other Documents. The Manager will provide other information
and services, other than services of outside counsel or independent accountants
or services to be provided by the Adviser under the Advisory Agreement or an
administrator under an administration contract, required in connection with
the
preparation of all registration statements and Prospectuses, prospectus
supplements, Statements of Additional Information, all annual, semi-annual,
and
periodic reports to shareholders of the Fund, regulatory authorities, or others,
and all notices and proxy solicitation materials, furnished to shareholders
of
the Fund or regulatory authorities, and all tax returns.
The
Manager will oversee the computation of the net asset value and the net income
of the Fund as described in the currently effective registration statement
of
the Trust under the Securities Act of 1933, as amended, and the 1940 Act and
any
supplements thereto (“Registration Statement”) or as more frequently requested
by the Board.
The
Manager will oversee the maintenance of all books and records with respect
to
the securities transactions of the Fund, and will furnish the Board with such
periodic and special reports as the Board reasonably may request. In compliance
with the requirements of Rule 31a-3 under the 1940 Act, the Manager hereby
agrees that all records which it maintains for the Fund are the property of
the
Trust, agrees to preserve for periods prescribed by Rule 31a-2 under the 1940
Act any records which it maintains for the Fund and which are required to be
maintained by Rule 31a-1 under the 1940 Act, and further agrees to surrender
promptly to the Trust any records which it maintains for Fund upon request
by
the Trust.
Further
Duties. In all matters relating to the performance of this Contract, the Manager
will act in conformity with the Agreement and Declaration of Trust, By-Laws
and
Registration Statement of the Trust and with the instructions and directions
of
the Board and will comply with the requirements of the 1940 Act, the rules
thereunder, and all other applicable federal and state laws and
regulations.
2
Services
Not Exclusive. The services furnished by the Manager hereunder are not to be
deemed exclusive and the Manager shall be free to furnish similar services
to
others so long as its services under this Contract are not impaired thereby.
Nothing in this Contract shall limit or restrict the right of any director,
officer or employee of the Manager, who may also be a Trustee, officer or
employee, of the Trust, to engage in any other business or to devote his or
her
time and attention in part to the management or other aspects of any other
business, whether of a similar nature or a dissimilar nature.
Expenses.
During
the term of this Contract, the Fund will bear all its expenses and its pro
rata
share of the total expenses incurred by the Trust that are not specifically
assumed by the Manager.
Expenses
borne by the Fund will include but not be limited to the following: (i) fees
payable to and expenses incurred on behalf of the Fund by the Manager relating
to the Fund under this Contract; (ii) fees and other compensation and expenses
of the Adviser pursuant to the Advisory Agreement approved by the Trust; (iii)
expenses of preparing and filing reports and other documents with governmental
and regulatory agencies; (iv) filing fees and expenses relating to the
registration and qualification of the Fund’s shares and the Trust under federal
and/or state securities laws and maintaining such registrations and
qualifications; (v) costs incurred in connection with the issuance, sale or
repurchase of the Fund’s shares of beneficial interest; (vi) the portion of the
fees and salaries payable to the Trust’s Trustees who are not parties to this
Contract or interested persons of any such party (“Independent Trustees”)
allocated to the Fund; (vii) the portion of all expenses incurred in connection
with the Independent Trustees’ services, including travel expense allocated to
the Fund; (viii) taxes (including any income or franchise taxes) and
governmental fees; (ix) costs of any liability, uncollectible items of deposit
and other insurance and fidelity bonds; (x) any costs, expenses or losses
arising out of a liability of or claim for damages or other relief asserted
against the Trust or Fund for violation of any law; (xi) interest charges;
(xii)
legal, accounting and auditing expenses, including legal fees of special counsel
for the Independent Trustees; (xiii) charges of custodians, transfer agents,
pricing agents and other agents; (xiv) expenses of disbursing dividends and
distributions; (xv) expenses of setting in type, printing and mailing reports,
notices and proxy materials for existing shareholders; (xvi) any extraordinary
expenses (including fees and disbursements of counsel, costs of actions, suits
or proceedings to which the Fund is a party and the expenses the Fund may incur
as a result of its legal obligation to provide indemnification to the Trust’s
officers, Trustees, employees and agents) incurred by the Fund; (xvii) fees,
voluntary assessments and other expenses incurred in connection with membership
in investment company organizations; (xviii) costs of mailing and tabulating
proxies and costs of meetings of shareholders, the Board and any committees
thereof; (xix) the cost of investment company literature and other publications
provided by the Trust to its Trustees and officers; and (xx) costs of mailing,
stationery and communications equipment.
3
The
Manager will assume the cost of any compensation received by the officers of
the
Trust and by the Interested Trustees who are employees of the
Manager.
The
payment or assumption by the Manager of any expense of the Trust or the Fund
that the Manager is not required by this Contract to pay or assume shall not
obligate the Manager to pay or assume the same or any similar expense of the
Trust or the Fund on any subsequent occasion.
Compensation.
For
the
services provided to the Fund under this Contract, the Fund shall pay the
Manager an annual fee, payable monthly, based upon the Fund’s average daily
assets as set forth in Appendix A. Such compensation shall be paid solely from
the assets of the Fund.
The
fee
shall be computed daily and paid monthly to the Manager on or before the last
business day of the next succeeding calendar month.
If
this
Contract becomes effective or terminates before the end of any month, the fee
for the period from the effective date to the end of the month or from the
beginning of such month to the date of termination, as the case may be, shall
be
prorated according to the proportion which such period bears to the full month
in which such effectiveness or termination occurs.
Limitation
of Liability of the Manager and Indemnification.
The
Manager and its delegates shall not be liable for any costs or liabilities
arising from any error of judgment or mistake of law or any loss suffered by
the
Fund, the Trust or any of the Fund’s shareholders in connection with the matters
to which this Contract relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on the part of the Manager in the
performance by the Manager of its duties or from reckless disregard by the
Manager of its obligations and duties under this Contract. The Fund shall
indemnify the Manager and its directors, officers and employees for any losses,
damages, liabilities, costs and expenses (“Losses”) as they are incurred by the
Manager by reason of or arising out of any act or omission by the Trust under
this Contract, or by any breach of warranty, representation or agreement
hereunder, except to the extent that such losses arise as a result of the
negligence of the Manager in the performance by the Manager of its duties under
this Contract.
Any
person, even though also an officer, partner, employee, or agent of the Manager,
who may be or become an officer, Trustee, employee or agent of the Trust shall
be deemed, when rendering services to the Fund or the Trust or acting with
respect to any business of the Fund or the Trust, to be rendering such service
to or acting solely for the Fund or the Trust and not as an officer, partner,
employee, or agent or one under the control or direction of the Manager even
though paid by it.
Duration
and Termination.
This
Contract shall become effective upon the date hereabove written, provided that
this Contract shall not take effect unless it has first been approved (i) by
a
vote of a majority of the Independent Trustees, cast in person at a meeting
called for the purpose of voting on such approval, and (ii) by vote of a
majority of the Fund’s outstanding voting securities.
4
Unless
sooner terminated as provided herein, this Contract shall continue in effect
for
two years from the above written date. Thereafter, if not terminated, with
respect to the Fund this Contract shall continue automatically for successive
annual periods, provided that such continuance is specifically approved at
least
annually (i) by a vote of a majority of the Independent Trustees, cast in person
at a meeting called for the purpose voting on such approval, and (ii) by the
Board or by vote of a majority of the outstanding voting securities of the
Fund.
Notwithstanding
the foregoing, with respect to the Fund this Contract may be terminated at
any
time, without the payment of any penalty, by vote of the Board or by a vote
of a
majority of the outstanding voting securities of the Fund on sixty days’ written
notice to the Manager or by the Manager at any time, without the payment of
any
penalty, on sixty days’ written notice to the Trust.
Amendment
of this Contract. No provision of this Contract 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 of this Contract shall be effective
until approved by vote of a majority of the Fund’s outstanding voting
securities, when required by the 1940 Act.
Governing
Law. This Contract shall be construed in accordance with the laws of the State
of Delaware (without regard to Delaware conflict or choice of law provisions)
and the 1940 Act. To the extent that the applicable laws of the State of
Delaware conflict with the applicable provisions of the 1940 Act, the latter
shall control.
License
Agreement. The Trust shall have the non-exclusive right to use the name
“Hillview” to designate the Fund only so long as Hillview Capital Advisors, LLC
serves as investment manager to the Trust with respect to the Fund.
Limitation
of Shareholder Liability. The Manager is hereby expressly put on notice of
the
limitation of shareholder liability as set forth in the Declaration of Trust
of
the Trust and agrees that obligations assumed by the Trust pursuant to this
Agreement shall be limited in all cases to the Fund and its assets, and if
the
liability relates to one or more series, the obligations hereunder shall be
limited to the respective assets of the Fund. The Manager further agrees that
it
shall not seek satisfaction of any such obligation from the shareholders or
any
individual shareholder of the Fund, nor from the Trustees or any individual
Trustee of the Trust.
Miscellaneous.
The captions in this Contract are included for convenience of reference only
and
in no way define or limit any of the provisions hereof or otherwise affect
their
construction or effect. If any provision of this Contract shall be held or
made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Contract shall not be affected thereby. This Contract shall be binding upon
and
shall inure to the benefit of the parties hereto and their respective
successors. As used in this Contract, the terms “majority of the outstanding
voting securities,” “interested person,” “broker,” “dealer,” “national
securities exchange,” “net assets,” “prospectus,” “sale,” “sell” and “security”
shall have the same meaning as such terms have in the 1940 Act, subject to
such
exemption as may be granted by the Securities and Exchange Commission by any
rule, regulation or order. Where the effect of a requirement of the 1940 Act
reflected in any provision of this Contract is made less restrictive by a rule,
regulation or order of the Securities and Exchange Commission, whether of
special or general application, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
5
IN
WITNESS WHEREOF, the parties hereto have caused this instrument to be executed
by their officers designated as of the day and year first above
written.
on
behalf
of
REMS
REAL
ESTATE VALUE-OPPORTUNITY FUND
By: /s/
Xxxxx X. Xxxxxxx
Name: Xxxxx
X.
Xxxxxxx
Title: President
and Trustee
HILLVIEW
CAPITAL ADVISORS, LLC
By: /s/
Xxxxx X. Xxxxxxx
Name: Xxxxx
X.
Xxxxxxx
Title: Chief
Executive Officer
6
APPENDIX
A
TO
MANAGEMENT
CONTRACT
The
Fund
shall pay the Manager a fee, computed daily and paid monthly, at the annual
rate
of 0.25% of the Fund’s average daily net assets.
Dated:
August 12, 2005
