Exhibit 10.43
INVESTMENT MANAGEMENT AGREEMENT
This Investment Management Agreement ("Agreement") dated as of 6/10/05 is
entered into by and between JPMORGAN INVESTMENT ADVISORS INC. ("Investment
Advisor") and HOME POINTE INSURANCE COMPANY (the "Client") and sets forth the
terms on which Investment Advisor will act as investment manager of the assets
of Client placed with Investment Advisor for management hereunder (the
"Account").
1 Appointment of Investment Advisor. Client hereby appoints Investment Advisor
as investment manager with respect to the Account with full investment
authority, subject to the Investment Guidelines (as defined and described in
Section 3 below), and Investment Advisor accepts such appointment and agrees to
open and maintain the Account as Client's agent and investment manager.
2 Composition of Account; Custody. (a) The Account shall consist of such cash
and securities as shall be agreed upon by Client and Investment Advisor that
Client from time to time places under the supervision of Investment Advisor
and/or which shall become part of the Account as a result of transactions
therein or otherwise.
(b) Client has appointed FIFTH THIRD BANK (the "Custodian") to be the custodian
of the cash, securities and other property in the Account and Investment Advisor
will execute all investment transactions for settlement with the Custodian under
custodial account number 43-43-000-0000000. Client will provide Investment
Advisor with reasonable notice of any contributions to or withdrawals from the
Account as they may occur from time to time. Client shall direct the Custodian
to comply with all investment instructions given by Investment Advisor with
respect to the Account. Client shall provide Investment Advisor with reasonable
advance notice of any subsequent changes in the Custodian.
(c) Client agrees that: (i) unless Client gives written instructions to the
contrary all dividend and interest income received in respect of the Account
will be retained by the Custodian for reinvestment as part of the Account, and
(ii) Client shall have full responsibility for the payment of all taxes due on
capital or income held or collected for the Account and the filing of any
returns in connection therewith or otherwise required by law.
3 Investment Guidelines. Client is responsible for informing Investment Advisor,
in advance and in writing, of the investment policies, guidelines, objectives,
restrictions, conditions, limitations or directions applicable to, as well as
any cash needs of, the Account (the "Investment Guidelines"), and Investment
Advisor shall invest, reinvest and manage the securities, cash and any other
property in the Account subject to such Investment Guidelines as in effect from
time to time. The initial Investment Guidelines are attached hereto as Exhibit A
and made a part hereof. Client may amend the Investment Guidelines upon written
notice to Investment Advisor; provided such amendment becomes effective only
upon Investment Advisor's written acknowledgment of its receipt of such
amendment, and Investment Advisor shall be provided a reasonable time to comply
with such amendment.
4 Discretionary Authority. (a) Client requests Investment Advisor to review the
assets held in the Account, and, subject to and in accordance with the
Investment Guidelines, Investment Advisor shall have complete discretion and
authority, without obtaining Client's instructions, to make such sales,
exchanges, investments or reinvestments or to take any action that it deems
necessary or desirable in connection with the assets in the Account, and in
connection therewith to execute or cause to be executed any and all required
1
documents. In exercising its investment discretion Investment Advisor is not
limited to investing in securities and other property of the type normally
deemed appropriate for trust funds.
(b) Client authorizes Investment Advisor, in its discretion, to aggregate
purchases and sales of securities for the Account with purchases and sales of
securities of the same issuer for other clients of Investment Advisor occurring
on the same day. When transactions are so aggregated, the actual prices
applicable to the aggregated transaction will be averaged, and the Account and
the accounts of other participating clients of Investment Advisor will be deemed
to have purchased or sold their proportionate share of the securities involved
at the average price so obtained.
(c) Subject to the Investment Guidelines, investments may be made in, but are
not limited to, securities of any kind including common or preferred stocks,
warrants, rights, corporate or government bonds or notes, repurchase agreements,
securities of any open-end or closed-end management type investment company or
investment trust registered under the Investment Company Act of 1940, limited
liability legal entities and non-registered pooled funds. The fact that any bank
or non-bank subsidiary of JPMorgan Chase & Co. is selling or providing services
to and receiving remuneration from the foregoing repurchase agreement,
investment company, investment trust or other investment product as
counterparty, investment advisor, custodian, transfer agent, registrar, or
otherwise shall not preclude Investment Advisor from investing the Account in
the security.
5 Brokerage and Execution Services. In accordance with the terms of Exhibit B
attached hereto and made a part hereof, the Client acknowledges that Investment
Advisor will effect securities and other investment transactions through brokers
of its choosing.
6 Proxies and Legal Notices. Investment Advisor shall vote all proxies with
respect to securities held in the Account in accordance with Investment
Advisor's proxy voting guidelines and procedures in effect from time to time.
Client agrees to instruct Custodian to forward all proxy materials and related
shareholder communications to the designee provided by Investment Advisor
promptly upon receipt. Investment Advisor shall not be liable with regard to
voting of proxies or other corporate actions if the proxy materials and related
communications are not received in a timely manner. Investment Advisor will not
be required to take any action or render any advice with respect to securities
presently or formerly held in the Account, or the issuers thereof, which become
the subject of any legal proceedings, including bankruptcies.
7 Information and Statements. Investment Advisor shall cause to be rendered to
Client, no less frequently than quarterly, statements setting forth the property
in the Account and transactions therein and advices of changes as they are made
in the Account in accordance with Investment Advisor's normal procedures. Client
agrees to review promptly all statements and advices. Client acknowledges that
Custodian will furnish the official confirmations of Account transactions and
periodic Account statements detailing positions and activity.
Except with respect to any act or transaction of Investment Advisor as to which
Client shall object in writing to Investment Advisor within a period of ninety
(90) days from the date of receipt of any statement from Investment Advisor,
Investment Advisor and all of its employees, representatives, directors,
officers, shareholders, fiduciaries, employee benefit plans, or any affiliate
thereof (collectively, the "JPMC Entities and Persons") shall upon the
expiration of such period be released and discharged from any liability or
accountability to Client and any of its agents or representatives as respects
the propriety of acts, omissions, and transactions to the extent shown in such
statement.
2
8 Delegation to Third Parties. Investment Advisor may employ an affiliate or a
third party to perform any accounting, administrative, reporting and ancillary
services required to enable Investment Advisor to perform its functions under
this Agreement. Notwithstanding any other provision of the Agreement, Investment
Advisor may provide information about Client and the Account to any such
affiliate or other third party for the purpose of providing the services
contemplated under this clause. Investment Advisor will act in good faith in the
selection, use and monitoring of affiliates and other third parties, and any
delegation or appointment hereunder shall not relieve Investment Advisor of any
of its obligations under this Agreement.
9 Client Lists. Client consents to the use of Client's name in Investment
Advisor's (or its affiliates') lists of representative clients solely for the
purpose of identifying Client as a Investment Advisor client.
10 Fees and Expenses. For all services provided hereunder, Client shall pay
Investment Advisor the fees set forth in Exhibit C attached hereto. Such fees
may be changed by written agreement of the parties hereto. It is understood
that, in the event such fees are to be paid by the Custodian, Client will
provide written authorization to the Custodian to pay Investment Advisor's fees
directly from the Account. In addition, it is agreed that all brokerage
commissions, taxes, charges and other costs incident to the purchase and sale of
securities shall be charged to and paid from the Account. Client shall also be
responsible for, and shall reimburse Investment Advisor with respect to, any
out-of-pocket expenses (including attorneys fees) incurred by any of the JPMC
Entities and Persons with respect to any litigation or required responses to
third parties arising out of Investment Advisor's management of the Account,
except to the extent it is judicially determined that Investment Advisor acted
with gross negligence or willful misconduct.
11 Service to Other Clients. It is understood that Investment Advisor and its
affiliates perform investment advisory services for various clients. Client
agrees that Investment Advisor may give advice and take action with respect to
any of its other clients, which may differ from advice given or the timing or
nature of action taken with respect to the Account. It is Investment Advisor's
policy, to the extent practicable, to allocate investment opportunities among
clients over a period of time on a fair and equitable basis. It is understood
that Investment Advisor shall not have any obligations to purchase or sell, or
to recommend for purchase or sale, for the Account any security which Investment
Advisor, its principals, affiliates or employees may purchase or sell for its or
their own accounts or for the account of any other client, if in the opinion of
Investment Advisor such transaction or investment appears unsuitable,
impractical or undesirable for the account. Client acknowledges that Investment
Advisor may make different investment decisions with respect to each of its
clients, and that such fact shall not be relied upon by Client or any of its
agents or representatives as evidence of a breach of Investment Advisor's duties
hereunder.
12 Insider Information. If, by reason of its investment management activities,
Investment Advisor obtains material non-public information, Client acknowledges
that Investment Advisor will not make any investment decisions based upon such
information.
13 Notices. All notices and other written communications specified herein shall
be deemed duly given if delivered personally, if mailed (by registered or
certified mail, return receipt requested and postage prepaid), if sent by
overnight courier service for next business day delivery, by facsimile
transmission, or by electronic transmittal with return receipt, to the
appropriate address for each party as set forth below. Such communications shall
be effective immediately (if delivered in person or by confirmed facsimile),
upon the date acknowledged to have been received in return receipt, or upon the
next business day (if sent by overnight courier service).
3
Notices shall be sent to Investment Advisor at the following address:
Address: 0000 Xxxxxxx Xxxxxxx, Xxxxx 0X, Xxxxxxxx XX 00000
Facsimile: 000-000-0000
Attention: Client Service Management
A copy of all legal notices shall also be delivered to Investment Advisor at the
following address:
X.X. Xxxxxx Investment Management Inc.
0000 Xxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000
Attention: Legal Department
Notices shall be sent to Custodian at the following address:
Address: Fifth Third Bank
Facsimile: __________________________________
Attention: __________________________________
Notices shall be sent to Client at the following address:
Address: 00000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxxxxx, Controller
Facsimile: __________________________________
14 Discharge of Liability. (a) Investment Advisor does not guarantee the future
performance of the Account or any specific level of performance, the success of
any investment decision or strategy that Investment Advisor may use, or the
success of Investment Advisor's overall management of the Account. Client
understands that investment decisions made for the Account by Investment Advisor
are subject to various market, currency, economic, political and business risks,
and that those investment decisions will not always be profitable. Investment
Advisor will manage only the securities, cash and other investments held in the
Account and in making investment decisions for the Account, Investment Advisor
will not consider any other securities, cash or other investments owned or
managed by Client.
(b) The JPMC Entities and Persons shall have no liability for any expenses,
losses, damages, liabilities, charges and claims of any kind or nature
whatsoever ("Losses") incurred by or threatened against Investment Advisor as
the result of any actions it takes based on instructions it receives from
authorized persons ("Authorized Persons") of the Client and reasonably believed
by the JPMC Entities and Persons to be genuine. A list of such Authorized
Persons is listed on Exhibit D. The JPMC Entities and Persons shall not be
liable to Client or its representatives for any Losses suffered by Client
arising from any depreciation in the value of the Account or from the income
derived from it (including, without limitation, where such depreciation results
from capital loss or taxation liability) or other Losses that result from
Investment Advisor's actions hereunder, except to the extent such Losses are
judicially determined to be proximately caused by the gross negligence or
willful misconduct of Investment Advisor. Under no circumstances shall the JPMC
Entities and Persons be liable for any special, consequential or indirect
damages.
(c) Investment Advisor may consult with legal counsel (who may be of counsel to
Client or the Custodian) concerning any question which may arise with reference
to its duties under this Agreement, and the opinion of such counsel shall be
full and complete protection with respect to any action taken or suffered by
Investment Advisor hereunder in good faith and in accordance with the opinion of
such counsel.
4
(d) Notwithstanding the foregoing, no provision of this Agreement shall
constitute a waiver or limitation of any right of Client that may exist under
Federal or state securities law.
15 Force Majeure. (a) Neither party to this Agreement shall be liable for
damages resulting from delayed or defective performance when such delays arise
out of causes beyond the control and without the fault or negligence of the
offending party. Such causes may include, but are not restricted to, Acts of God
or of the public enemy, terrorism, acts of the State in its sovereign capacity,
fires, floods, earthquakes, power failure, disabling strikes, epidemics,
quarantine restrictions, and freight embargoes.
(b) If at any time due to major fluctuations in market prices, abnormal market
conditions or any other reason outside the control of Investment Advisor, there
shall be a deviation from the specific instructions set out in the Investment
Guidelines: (i) Investment Advisor shall not be in breach of the Investment
Guidelines provided it takes such steps as may be necessary to ensure compliance
within 14 days after such deviation occurs; and (ii) If, in the judgment of
Investment Advisor, the actions described in (i) above are not in the best
interests of Client, Investment Advisor may, prior to the expiration of the 14
day period referred to in (i) above, make a written recommendation to Client on
the most appropriate way to deal with the deviation which shall toll the
deadline in (i) above. Unless Client directs Investment Advisor to the contrary
within 14 days of the receipt by Client of the recommendation, Investment
Advisor shall be entitled to implement its recommendation and shall not be in
breach of the Investment Guidelines. Investment Advisor does not provide any
express or implied warranty as to the performance or profitability of the
Account or any part thereof or that any specific investment objectives will be
successfully met.
16 Client Representations. Client represents and warrants to Investment Advisor
that: (i) Client has full power and authority to appoint Investment Advisor to
deal with the Account in accordance with the terms of this Agreement, this
Agreement is valid and has been duly authorized, does not violate any obligation
by which Client is bound, and when so executed and delivered, will be binding
upon Client in accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights generally
and general principles of equity (and Client agrees to provide Investment
Advisor with evidence of such authority as may be reasonably requested by
Investment Advisor); (ii) Client is not an investment company as defined by the
"Investment Company Act of 1940" and registration of the Account under such Act
is not required; (iii) the Account does not contain employee benefit plan assets
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), Client is not an employee benefit plan subject to ERISA, and Client
is not entering into this Agreement in a fiduciary capacity under ERISA; (iv)
Client has executed and delivered to Investment Advisor, as applicable, a QEP
Qualification (Annex A) and a Qualified Institutional Buyer Certification (Annex
B), and Client will immediately advise Investment Advisor in writing of any
change in status affecting such documents; (v) Client acknowledges that it has
received from Investment Advisor a copy of Part II of Investment Advisor's Form
ADV more than forty-eight (48) hours prior to entering into this Agreement; and
(vi) Client shall furnish to Investment Advisor certified copies of appointments
or designations setting forth the names, titles and authorities of the
individuals who are authorized to act on behalf of Client with respect to the
Account and this Agreement, and Investment Advisor shall be entitled to rely
upon such information until it receives written notice of a change in such
appointments or designations.
17 Investment Advisor Representations. Investment Advisor represents and
warrants to Client that: (i) this Agreement is valid and has been duly
authorized, does not violate any obligation by which Investment Advisor is
bound, and when so executed and delivered, will be binding upon Investment
Advisor in accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights generally
and general principles of equity; and (ii) it is registered as an investment
adviser under the Investment Adviser's Act of 1940.
5
18 Applicable Law. All questions arising hereunder shall be determined according
to the laws of the State of New York (without regard to its conflict of laws
provisions) and the provisions hereof shall be binding upon the successors and
assigns of the parties. Client hereby submits to the jurisdiction of the courts
of New York and of the Federal Courts in the Southern District of New York with
respect to any litigation relating to this agreement, and consents to the
service of process by the mailing to Client of copies thereof by certified mail
to Client's address as it appears on the books and records of Investment
Advisor, such service to be effective ten days after mailing. Client hereby
waives trial by jury in any judicial proceeding involving any dispute,
controversy or claim arising out of or relating to this Agreement. Client hereby
irrevocably waives any immunity to which it might otherwise be entitled in any
arbitration, action at law, suit in equity or any other proceedings arising out
of or based on this Agreement or any transaction in connection herewith.
19 Assignment. This Agreement may not be assigned, as defined in the Investment
Advisers Act of 1940, as amended, and the rules thereunder without the written
consent of the other party.
20 Termination and Survival. This Agreement may be terminated with respect to
all or a portion of the cash, securities or other property constituting the
Account by either party as to its responsibilities hereunder at any time by
giving to the other party written notice at least thirty (30) days prior to the
date on which such termination is to become effective. Termination of this
Agreement shall be without prejudice to the completion of any commitments to
purchase or dispose of any securities or other property made by Investment
Advisor prior to giving or receipt of notice to terminate this Agreement. The
provisions relating to the following rights and obligations of the parties shall
survive the termination, cancellation, expiration and/or rescission of this
Agreement: Client Lists, Discharge of Liability, Applicable Law, and Termination
and Survival.
21 Counterparts; Severability. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. In the event that one or
more provisions of this Agreement shall be held by any court to be invalid, void
or unenforceable, the remaining provisions shall nevertheless remain and
continue in full force and effect.
22 Amendment. This Agreement may be amended by mutual consent of the parties.
Except as provided herein, no alteration or variation of the terms of this
Agreement shall be valid unless made in writing and signed by the parties
hereto.
23 Customer Identification Program. To help the government fight the funding of
terrorism and money laundering activities, Investment Advisor has adopted a
Customer Identification Program, ("CIP") pursuant to which Investment Advisor is
required to obtain, verify and maintain records of certain information relating
to its clients. In order to facilitate Investment Advisor's compliance with its
CIP, Client hereby represents and warrants that (i) Client's taxpayer
identification number or other government issued identification number is
00-0000000, (ii) all documents provided to Investment Advisor are true and
accurate as of the date hereof, and (iii) Client agrees to provide to Investment
Advisor such other information and documents that Investment Advisor requests in
order to comply with Investment Advisor's CIP.
IN WITNESS WHEREOF, this Agreement has been signed on behalf of the parties on
the day and year first above written.
6
HOME POINTE INSURANCE COMPANY JPMORGAN INVESTMENT ADVISORS INC.
By: /s/ B. Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- ------------------------------------
Title: President Title: VICE PRESIDENT
7
EXHIBIT A
4.0 GENERAL PORTFOLIO GUIDELINES
4.A. APPROVED SECURITY TYPES
Security types approved for investment include:
- treasury bills, promissory notes, corporate paper (including commercial
paper, term deposits, bearer discount notes, certificates of deposit,
bankers acceptances, bank deposits), and money market funds;
- bonds/debentures - includes all types of bonds or debentures
- mortgage backed securities - includes agency and non-agency mortgage
pass-throughs, as well as, fixed and floating rate CMOs, and CMBS
- asset-backed securities
- U.S. Dollar denominated debt of foreign issuers (Yankee Bonds)
- 144-A securities (securities must be rated by at least one NRSRO and must
meet credit quality guidelines as outlined in 4.E)
- preferred shares
- convertible securities
- equities
4.B DURATION/ AVERAGE MATURITY
For the fixed income assets, the interest rate risk exposure will be managed in
relation to the existing liability requirements, market conditions and interest
rate risk limits. Cognizance should be given to but not dictated by liabilities
in structuring of the fixed income portfolio.
The maximum interest rate risk of the fixed income assets, including cash, as
measured by average modified duration, will be limited to a range of 70% to 130%
of the average duration of the appropriate market benchmark index.
4.C LIQUID RESERVES
The portfolio should be designed to avoid forced sales.
Portfolio structures should be managed to ensure that there is sufficient
liquidity to provide for immediate operational requirements.
Beyond normal operational needs, should circumstances force the liquidation of
assets, it is important that portfolios maintain liquidity sufficient to meet
these needs.
The minimum amount of assets that would mature within 1 year is 3% of the
portfolio, unless specifically requested to be changed by the Investment
Committee. These assets would be expected to experience the least amount of
volatility and liquidity risk, thereby enabling efficient sale as necessary.
4.D MARKETABILITY
The majority of the assets in each portfolio must be readily marketable. For
fixed income assets the securities must be of a quality that could easily obtain
a fair market bid from the major bond desks. The total size of most fixed income
issues should be large enough to ensure a reasonable expectation of a secondary
market. For equities, the securities must be listed on a recognized exchange
(New York, American, NASDAQ, and Toronto).
4.E CREDIT QUALITY
8
All portfolios should maintain high credit quality. Alternatives to high quality
government securities should only be purchased when there is a meaningful gain
in after tax return. Investment credit guidelines must be in compliance with the
appropriate state regulatory guidelines.
Bonds purchased for the portfolio should have an NAIC rating of 1 (A rated or
above), or 2 (BBB) with no more than 20% of the portfolio in NAIC2. Bonds with
an NAIC ranking of 3,4,5 or 6 are not eligible for investment unless
specifically approved by the Investment Committee.
In a case where the credit rating for an investment in the portfolio falls to
NAIC 3,4,5 or 6 the investment manager will determine a prudent course of
action. North Pointe management is to be informed of the recommended strategy.
No more than 5% of the portfolio should be in securities with an NAIC ranking of
3,4,5 or 6.
4.F SIZE PARAMETERS/ DIVERSIFICATION LIMITS
The following are the guidelines as related to issuer and industry
diversification. These diversification guidelines apply to the portfolios of
each subsidiary individually. These limits must also be in compliance with the
specific NAIC/state insurance regulations. All diversification limits are in
terms of the percentage of the total investment portfolio at market:
- Commercial paper/cash equivalents- no more than 15% in a single issuer;
investments should be in highest ratings (A1,R1,P1);
- Treasuries, Government Agencies, Canadas - no maximum or concentration
limit;
- State/Province/Municipality - no more than 25% in any one state, province
or municipality;
- Corporate bonds - no more than 10% in any one issuer;
- Preferred shares - no more than 5% in any one issuer;
- Equity - no more than 3% in any one issuer;
In any cases where an issuer's equity and debt securities are held the maximum
limit would be 10% in total.
Industry concentration - no more than 25% in any one industry.
5.0 ASSET MIX GUIDELINES
The intent of asset class allocation is to enable return maximization within
acceptable risk parameters. The allocation of investments to individual asset
class must take into consideration the impact on risk based capital
calculations, the impact on AM Best and other ratings and overall portfolio
risk. Asset allocations must also be in compliance with applicable state
insurance regulations.
Asset allocation limits are a statement of limits and not specific allocation
requirements. The following are asset mix guidelines as a percentage of the
investment portfolio at market:
Minimum Benchmark Maximum
------- --------- -------
Short Term/ cash equivalent (term<1yr) 3% 4% 5%
Bonds and Preferred Shares 70% 86% 95%
Equity** (subject to a maximum of 50% of
shareholders' equity on a GAAP basis) 0% 10% 20%
All limits are measured on a market basis at the time of purchase. Should market
appreciation cause holdings to exceed the limit the Investment Committee should
be advised.
9
Notes:
* Securities rated NAIC2 should be limited to 20% of the portfolio and
NAIC3,4,5,6 should be no more than 5% in total.
** Unless otherwise approved, equities listed on the New York and American
Stock Exchanges, NASDAQ and Toronto.
6.0 PERFORMANCE MEASUREMENT
The investment returns will be calculated for the entire portfolio as well as
for each asset class.
Performance calculations are to be done in accordance with AIMR Performance
Presentation Standards.
Returns will be provided on a gross basis and compared against appropriate
market benchmarks. The benchmark indices for each asset class are as follows:
- For US short term/cash the benchmark is the 91 Xxxxxxx T-xxxx index.
- For US taxable and tax-exempt bonds - see Appendix B for the appropriate
custom benchmark.
- For US equities the index is the S&P 500.
A composite benchmark will be created using neutral weightings for each asset
class. These benchmark weightings will reflect the corporation's investment
objective, risk tolerance and the current financial and tax condition of the
firm. The benchmark weightings are to be reviewed by the investment committee
each year.
The current benchmark weightings for a broad market mandate are as follows:
Index
-----
Cash 4% 91 day T-xxxx Index
Bonds 86% see Appendix B
Equity 10% S&P 000
XXXXX XXXXXX XXXXX XX DIRECTORS
Xxxxx X. Xxxxxxx
Chief Executive Officer
North Pointe Holdings Corporation
B. Xxxxxxx Xxxxxxx
Chief Operating Officer
North Pointe Holdings Corporation
NORTH POINTE INVESTMENT COMMITTEE
Xxxxx X. Xxxxxxx B. Xxxxxxx Xxxxxxx
Xxxx Xxxx Xxxx X. Xxxxx
NORTH POINTE MANAGEMENT/INVESTMENT OPERATIONS (000)-000-0000
Xxxxx X. Xxxxxxx (xxxxxxxx@xxxx.xxx)
B. Xxxxxxx Xxxxxxx (xxxxxxxx@xxxx.xxx)
Xxxx X. Xxxxx (xxxxxx@xxxx.xxx)
Celeska X. Xxxxxxxxxxx (xxxxxxxxxxxx@xxxx.xxx)
Xxxxx X. Xxxxx (xxxxxx@xxxx.xxx)
Xxxxx Xxxxxx (xxxxxxx@xxxx.xxx)
10
INVESTMENT MANAGER
JPMorgan Investment Advisors
Xxxxxx Xxxxxx (xxxxxx_x_xxxxxx@xxxxxxx.xxx)
Xxxxx Xxxxxx (xxxxx_xxxxxx@xxxxxxx.xxx) (000)000-0000
Xxx Xxxxxx (xxxxxx_x_xxxxxx@xxxxxxx.xxx) (000)000-0000
CUSTOM FIXED INCOME BENCHMARK
4% Xxxxxx 3-month T-Xxxx Index
73% Xxxxxx Intermediate Gov't/Credit Index
23% Xxxxxx Mortgage-Backed Securities (MBS) Index
Adopted: August 5, 2004
11
EXHIBIT B
Brokerage and Execution Services
(a) Investment Advisor will use the execution services of such broker-dealers as
it may select from time to time, which will be entitled to compensation for
their services, to effect transactions for the purchase and/or sale of
securities and other investments by the Account. In connection with transactions
effected for the Account, Client authorizes Investment Advisor to establish and
trade in accounts in its or the name of the Account with members of national or
regional securities exchanges and the National Association of Securities Dealers
Inc., including "omnibus" accounts established for the purpose of combining
orders for more than one client.
(b) Client hereby authorizes Investment Advisor to effect transactions for the
Account through affiliated broker-dealers ("Affiliated Broker-Dealers") and the
Affiliated Broker-Dealers may retain commissions in connection with effecting
such agency transactions for the Account. Client understands that other broker-
dealers may be willing to effect transactions for Client at lower commission
rates than those charged by Affiliated Broker-Dealers. When executing trades
through Affiliated Broker-Dealers, Investment Advisor shall seek to obtain the
most favorable terms for Client transactions that are reasonably available under
the circumstances. If Client's Account is subject to Section ll(a) of the
Securities Exchange Act of 1934, as amended ("Exchange Act") and Rule 11a2-2(T)
thereunder, Client authorizes the Affiliated Broker-Dealers that may be members
of a U.S. securities exchange, or have the right to trade on such an exchange,
to execute transactions on such exchange for the Account.
(c) In selecting brokers through which transactions for client accounts will be
executed, Investment Advisor's primary consideration will be the broker's
ability to provide best execution of trades. In making a decision about best
execution (and subject to section 28(e) of the Exchange Act), Investment Advisor
may consider a number of factors including, but not limited to, trade price and
commission and quality of research services the broker may provide. The
commission rates paid to any broker for execution of transactions will be
determined through negotiations with the broker, taking into account industry
norms for the size and type of transaction, and the nature of brokerage and
research services provided. Such research services may include, but not be
limited to, analysis and reports concerning economic factors and trends,
industries, specific securities, and portfolio strategies. Research services
furnished by brokers will generally be used in connection with all Investment
Advisor's advisory accounts, although not all such services may be used with any
particular account that paid commissions to the brokers providing such services.
(d) Investment Advisor is also hereby authorized to effect "agency cross
transactions" (as defined in Rule 206(3)-2 promulgated by the Securities and
Exchange Commission under the Investment Advisers Act of 1940, as amended) with
its Affiliated Broker-Dealers whereby they will act as agent for, and receive
commissions from, the Account and the party on the other side of the
transaction. Client understands that in addition to receiving commissions from
both parties, the Affiliated Broker-Dealers may have a potentially conflicting
division of loyalties and responsibilities to both parties to the transaction.
Client's consent to execute "agency-cross transactions" may be revoked at any
time by written notice from Client to Investment Advisor.
12
EXHIBIT C
FEE AGREEMENT
Account Name: HOME POINTE INSURANCE COMPANY
Account
FEE SCHEDULE:
Investment Advisor's annual fee for acting as investment manager of the above
referenced Account is as follows:
0.22 of 1% on the balance
BILLING PERIOD:
The investment management fee will be calculated as of the last business day of
each calendar quarter-end (i.e. March, June, September, December).
FEE CALCULATION METHODOLOGY:
Investment Fee Time Period: Quarterly
Investment Fee Method (check one): Account value as of the last day of the
period*/Average daily account balance (not available for Accounts with a
third-party custodian)
The market value used for calculating the fee will be based on the average of's
three month-end market values comprising the billing period.
* For accounts valued on the last day of each period, the market value(s)
that form(s) the basis for each fee calculation will be adjusted to prorate
any contributions and withdrawals that occurred during the billing period
when the daily sum of such activity exceeds the greater of $1 million or
2% of the portfolio's market value. For purposes of determining this
percentage threshold, each day's contributions and withdrawals will be
measured against the immediately preceding month-end market value.
Agreed to and accepted:
HOME POINTE INSURANCE COMPANY JPMORGAN INVESTMENT ADVISORS INC.
By: /s/ B. Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- ------------------------------------
Title: President Title: VICE PRESIDENT
13
ANNEX B QUALIFIED INSTITUTIONAL BUYER CERTIFICATION
To: JPMorgan Investment Advisors Inc. (the "Agent")
Dear Ladies and Gentlemen:
The undersigned has retained Agent to manage the assets in the undersigned's
account (the "Account") pursuant to an agreement with the Agent (the
"Agreement"). Pursuant to the Agreement, the Agent is authorized to invest the
Account in restricted securities under Rule 144A of the Securities Act of 1933
("Rule 144A") that are issued by various issuers (the "Issuers") and purchased
from various Broker-Dealers (the "Brokers"). In order to establish that it is a
"Qualified Institutional Buyer" under Rule 144A, the undersigned hereby makes
the certifications set forth below to the Agent, the Issuers, and the Brokers.
The undersigned acknowledges that the Agent, the Issuers, and the Brokers will
rely on this certification for purposes of Rule 144A. The Agent is hereby
authorized to certify to the Issuers and Brokers from time to time that the
undersigned is a Qualified Institutional Buyer within the meaning of Rule 144A.
Such Issuers and Brokers may rely on a certification from the Agent as to the
undersigned's status as a Qualified Institutional Buyer as if such certification
were delivered directly from the undersigned. The undersigned agrees to notify
the Agent of any change in the certifications set forth below. This
certification shall be deemed to be a continuing certification until such time
as Agent is notified in writing that the undersigned is no longer a Qualified
Institutional Buyer for purposes of Rule 144A.
The undersigned hereby certifies that it is familiar with the requirements of
Rule 144A and further certifies, represents and warrants that:
1. The undersigned is a "Qualified Institutional Buyer" as described in
Attachment A hereto.
2. As of ___________________*, the undersigned owned and invested on a
discretionary basis an aggregate of $_________________**, of eligible securities
as defined and calculated as set forth in Attachment A.
3. Fiscal year end: _____________________________
4. The undersigned is acting for its own account or the accounts of other
Qualified Institutional Buyers.
5. The person signing this certification is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
undersigned duly authorized to execute this certification. If the undersigned is
a "family of investment companies" as defined in Rule 144A, the person executing
this certification is an executive officer of the investment adviser.
Company: Home Pointe Insurance Company
By: Xx. Xxxxxxx X. Xxxxxxxxxxx
Printed Name: ________________________
Title: Controller
Date: _________________
* Insert a specific date on or since the end of the undersigned's most recent
fiscal year.
** The amount can be an approximation but must be a specific amount in excess
of $100 million or such lesser amount applicable to the entity as
contemplated by Attachment A. The aggregate investable amount should
include all eligible securities, not just those managed by agent.
14
ATTACHMENT A
Definition of "QUALIFIED INSTITUTIONAL BUYER"
Any of the following entities, acting for its own account or the account of
other Qualified Institutional Buyers, that in the aggregate owns and invests on
a discretionary basis at least $100 million in securities:
A company organized as an insurance company, whose primary and predominant
business activity is the writing of insurance or the reinsuring of risk
underwritten by insurance companies, and which is subject to supervision by
the insurance commissioner, or similar official or agency, of a state or
territory or the District of Columbia; or any receiver or similar official
or any liquidating agent for an insurance company, in his capacity as such.
An investment company registered under the Investment Company Act of 1940.
A business development company as defined in Section 2(a)(48) of the
Investment Company Act of 1940.
A small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act of 1958.
A plan established and maintained by a state, its political subdivisions,
or any agency or instrumentality of a state or its political subdivisions,
for the benefit of its employees.
An employee benefit plan within the meaning of Title I of the Employment
Retirement Income Security Act of 1974 ("ERISA").
A trust fund whose trustee is a bank or trust company and whose
participants are exclusively (i) plans established and maintained by a
state, its political subdivisions, or any agency or instrumentality of a
state or its political subdivisions, for the benefit of its employees, or
(ii) employee benefit plans within the meaning of Title I of the ERISA,
except trust funds that include as participants individual retirement
accounts or H.R. 10 plans.
A business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940.
An organization described in Section 501(c)(3) of the Internal Revenue
Code.
A corporation (other than a bank as defined in Section 3(a){2) of the
Securities Act of 1933 or a savings and loan association or other
institution referenced in Section 3(a)(5)(A) of the Securities Act of 1933
or a foreign bank or savings and loan association or equivalent
institution).
A partnership.
A Massachusetts or similar business trust.
An investment adviser registered under the Investment Advisers Act of 1940.
15
A bank as defined in Section 3(a)(2) of the Securities Act of 1933 that has
an audited net worth of at least $25 million as demonstrated in its latest
annual financial statements, as of a date not more than 16 months preceding
the date of sale under the rule.
A savings and loan association or other institution as referenced in
Section 3(a)(5)(A) of the Securities Act of 1933 that has an audited net
worth of at least $25 million as demonstrated in its latest annual
financial statements, as of a date not more than 16 months preceding the
date of sale under the rule.
A foreign bank or savings and loan association or equivalent institution
that has an audited net worth of at least $25 million as demonstrated in
its latest annual financial statements, as of a date not more than 18
months preceding such date of sale for a foreign bank or savings and loan
association or equivalent institution.
A dealer registered pursuant to Section 15 of the Securities Exchange Act
of 1934, as amended ("Exchange Act") that in the aggregate owns and invests
on a discretionary basis at least $10 million in securities.
A dealer registered pursuant to Section 15 of the Exchange Act, acting in a
riskless principal transaction on behalf of a Qualified Institutional
Buyer.
An investment company registered under the Investment Company Act of 1940
that is part of a family of investment companies (as defined in Rule
144A(a)(l)(iv)) which ownin the aggregate at least $100 million in
securities.
An entity, all of the equity owners of which are Qualified Institutional
Buyers.
Calculation of the Aggregate Amount of Securities owned and invested on a
discretionary basis
Exclusions. In determining the aggregate amount of eligible "securities" owned
and invested on a discretionary basis, the following instruments and interests
shall be excluded: securities issued by affiliates of the entity, bank deposit
notes and certificates of deposits, loan participations; repurchase agreements;
securities owned but subject to a repurchase agreement; and currency, interest
rate and commodity swaps.
Valuation. The aggregate value of securities owned and invested on a
discretionary basis by an entity shall be the cost of such securities, except
that they may be valued at market if the entity reports its securities holdings
in its financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been published.
Subsidiaries. Securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements prepared in accordance
with generally accepted accounting principles may be included if the investments
of such subsidiaries are managed under the direction of the entity, except that,
unless the entity is a reporting company under section 13 or 15(d) of the
Exchange Act, securities owned by such subsidiaries may not be included if the
entity itself is a majority-owned subsidiary that would be included in the
consolidated financial statements of another enterprise.
16
