INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 22nd day of December, 2008, by
and between ACP Funds Trust, a Delaware statutory trust (the “Trust”), and
Ascendant Capital Partners, LP, a Delaware Limited Partnership (the “Investment
Manager”).
WHEREAS,
the Trust is registered as a non-diversified, closed-end series management
investment company under the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
WHEREAS, the Trust has retained the
Investment Manager. (the “Administrator”) to provide administration of the
Trust's operations, subject to the control of the Board of Trustees;
and
WHEREAS, the Trust desires to retain
the Investment Manager to render investment management services with respect to
the series set forth in Schedule A attached hereto and such other series as the
Trust and the Investment Manager may agree upon (the “Funds”), and the
Investment Manager is willing to render such services.
NOW, THEREFORE, in consideration of
mutual covenants herein contained, the parties hereto agree as
follows:
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1.
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Duties of Investment
Manager. The Trust employs the Investment Manager
to manage the investment and reinvestment of the assets of the Trust, and
to continuously review, supervise and (where appropriate) administer the
investment program of the Trust, to determine in its discretion (where
appropriate) the investments to be purchased or sold, to provide the
Administrator and the Trust with records concerning the Investment
Manager’s activities which the Trust is required to maintain, and to
render regular reports to the Administrator and to the Trust’s officers
and Trustees concerning the Investment Manager's discharge of the
foregoing responsibilities. The retention of a sub-adviser by
the Investment Manager shall not relieve the Investment Manager of its
responsibilities under this
Agreement.
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The
Investment Manager shall discharge the foregoing responsibilities subject to the
control of the Board of Trustees of the Trust and in compliance with such
policies as the Trustees may from time to time establish, and in compliance with
the objectives, policies, and limitations of each Fund as set forth in its
Private Placement Memorandum (“PPM”), Statement of Additional Information and
Declaration of Trust, as amended from time to time, and applicable laws and
regulations.
The
Investment Manager accepts such employment and agrees, at its own expense, to
render the services and to provide the office space, furnishings and equipment
and the personnel (including any sub-advisers) required by it to perform the
services on the terms and for the compensation provided herein. The
Investment Manager will not, however, pay for the cost of securities,
commodities, and other investments (including brokerage commissions and other
transaction charges, if any) purchased or sold for the Trust.
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2.
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Trust
Transactions. The Investment Manager is authorized to
select the brokers or dealers that will execute the purchases and sales of
a Fund’s investments and is directed to use its best efforts to obtain the
best net results as described from time to time in the Fund’s PPM and
Statement of Additional Information. The Investment Manager
will promptly communicate to the Administrator and to the officers and the
Trustees of the Trust such information relating to the Trust’s investment
transactions as they may reasonably
request.
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It is
understood that the Investment Manager will not be deemed to have acted
unlawfully, or to have breached a fiduciary duty to the Trust or be in breach of
any obligation owing to the Trust under this Agreement, or otherwise, by reason
of its having directed a securities transaction on behalf of a Fund to a
broker-dealer in compliance with the provisions of Section 28(e) of the
Securities Exchange Act of 1934 or as described from time to time by the Fund’s
PPM and Statement of Additional Information.
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3.
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Compensation of the Investment
Manager. For the services to be rendered by the
Investment Manager as provided in Sections 1 and 2 of this Agreement, the
Investment Manager is entitled to receive from persons who purchase Units
of the Company (“Members”) an annual management fee (the “Management
Fee”). The Management Fee is equal to 1.50% of the net asset
value of each Member’s Units and will be subject to an adjustment (the
“Management Fee Adjustment”) based on the annual returns of each Member’s
Units. The Investment Manager’s fee is calculated and accrued
monthly and is paid out to the Investment Manager on a quarterly
basis. The Management Fee Adjustment will be determined in
accordance with the scale as specified in the Schedule(s) which is
attached hereto and made part of this Agreement. For purposes
of determining the Management Fee, net assets will be determined by taking
into account net realized gain or loss and the net change in unrealized
appreciation or depreciation of net
assets.
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All
rights of compensation under this Agreement for services performed as of the
termination date shall survive the termination of this Agreement.
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4.
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Other
Expenses. The Investment Manager shall pay all expenses
of printing and mailing reports, PPMs, Statements of Additional
Information, and sales literature relating to the solicitation of
prospective shareholders. The Trust shall pay all expenses of
mailing to existing shareholders PPMs, Statements of Additional
Information, proxy solicitation material and shareholder
reports.
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5.
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Excess
Expenses. If the expenses for the Trust for any fiscal
year (including fees and other amounts payable to the Investment Manager,
but excluding interest, taxes, brokerage costs, litigation, and other
extraordinary costs) as calculated every business day would exceed the
expense limitations imposed on investment companies by any applicable
statute or regulatory authority of any jurisdiction in which shares of the
Trust are qualified for offer and sale, the Investment Manager shall bear
such excess cost.
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Payment
of expenses by the Investment Manager pursuant to this Section 5 shall be
settled on a monthly basis (subject to fiscal year end reconciliation) by the
Investment Manager.
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6.
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Reports. The Trust and
the Investment Manager agree to furnish to each other, if applicable,
current PPMs, proxy statements, reports to shareholders, certified copies
of their financial statements, and such other information with regard to
their affairs as each may reasonably
request.
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7.
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Status of Investment
Manager. The services of the Investment Manager to the
Trust are not to be deemed exclusive, and the Investment Manager shall be
free to render similar services to others so long as its services to the
Trust are not impaired thereby. The Investment Manager shall be
deemed to be an independent contractor and shall, unless otherwise
expressly provided or authorized, have no authority to act for or
represent the Trust in any way or otherwise be deemed an agent of the
Trust.
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8.
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Certain
Records. Any records required to be maintained and
preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2
promulgated under the Investment Company Act which are prepared or
maintained by the Investment Manager on behalf of the Trust are the
property of the Trust and will be surrendered promptly to the Trust on
request.
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9.
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Limitation of Liability of
Investment Manager. The duties of the Investment Manager
shall be confined to those expressly set forth herein, and no implied
duties are assumed by or may be asserted against the Investment Manager
hereunder. The Investment Manager shall not be liable for any
error of judgment or mistake of law or for any loss arising out of any
investment or for any act or omission in carrying out its duties
hereunder, except a loss resulting from willful misfeasance, bad faith or
gross negligence in the performance of its duties, or by reason of
reckless disregard of its obligations and duties hereunder, except as may
otherwise be provided under provisions of applicable state law or Federal
securities law which cannot be waived or modified hereby. (As
used in this Paragraph 9, the term “Investment Manager” shall include
directors, officers, employees and other corporate agents of the
Investment Manager as well as the limited partnership
itself).
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10.
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Permissible
Interests. Trustees, agents, and shareholders of the
Trust are or may be interested in the Investment Manager (or any successor
thereof) as directors, partners, officers, or members, or otherwise;
directors, partners, officers, agents, and members of the Investment
Manager are or may be interested in the Trust as Trustees, Members or
otherwise; and the Investment Manager (or any successor) is or may be
interested in the Trust as a shareholder or otherwise. In
addition, brokerage transactions for the Trust may be effected through
affiliates of the Investment Manager if approved by the Board of Trustees,
subject to the rules and regulations of the Securities and Exchange
Commission.
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11.
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License of Investment Manager's
Name. The Investment Manager hereby agrees to grant a
license to the Trust for use of its name in the names of the Trust and the
Funds for the term of this Agreement and such license shall terminate upon
termination of this Agreement.
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12.
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Duration and Termination.
This Agreement, unless sooner terminated as provided herein, shall
remain in effect until two years from date of execution, and thereafter,
for periods of one year so long as such continuance thereafter is
specifically approved at least annually (a) by the vote of a majority of
those Trustees of the Trust who are not parties to this Agreement or
interested persons of any such party, cast in person at a meeting called
for the purpose of voting on such approval, and (b) by the Trustees of the
Trust or by vote of a majority of the outstanding voting securities of the
Trust; provided, however, that if the Shareholders of the Trust fail to
approve the Agreement as provided herein, the Investment Manager may
continue to serve hereunder in the manner and to the extent permitted by
the Investment Company Act and rules and regulations
thereunder. The foregoing requirement that continuance of this
Agreement be “specifically approved at least annually” shall be construed
in a manner consistent with the Investment Company Act and the rules and
regulations thereunder.
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This
Agreement may be terminated at any time, without the payment of any penalty by
vote of a majority of the Trustees of the Trust or by vote of a majority of the
outstanding voting securities of the Trust on not less than 30 days nor more
than 60 days written notice to the Investment Manager, or by the Investment
Manager at any time without the payment of any penalty, on 90 days written
notice to the Trust. This Agreement will automatically and
immediately terminate in the event of its assignment. Any notice
under this Agreement shall be given in writing, addressed and delivered, or
mailed postpaid, to the other party at any office of such party.
As used
in this Section 12, the terms “assignment”, “interested persons”, and a “vote of
a majority of the outstanding voting securities” shall have the respective
meanings set forth in the Investment Company Act and the rules and regulations
thereunder; subject to such exemptions as may be granted by the Securities and
Exchange Commission under said Act.
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13.
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Notice. Any
notice required or permitted to be given by either party to the other
shall be deemed sufficient if sent by registered or certified mail,
postage prepaid, addressed by the party giving notice to the other party
at the last address furnished by the other party to the party giving
notice: if to the Trust, 000 X. Xxxxxx Xxxxxxx Xx. Xxxxx X000,
Xxxxxx, XX 00000; Attention: President, and if to the Investment Manager
at 000 X. Xxxxxx Xxxxxxx Xx. Xxxxx X000, Xxxxxx, XX 00000, Attention:
President.
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14.
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Severability. If any
provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
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15.
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Governing
Law. This Agreement shall be construed in accordance
with the laws of the State of Delaware and the applicable provisions of
the Investment Company Act. To the extent that the applicable laws of the
State of Delaware, or any of the provisions herein, conflict with the
applicable provisions of the Investment Company Act, the latter shall
control.
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A copy of
the Certificate of Trust of the Trust is on file with the Secretary of the State
of Delaware, and notice is hereby given that this instrument is executed on
behalf of the Trustees of the Trust as Trustees, and are not binding upon any of
the Trustees, officers, or shareholders of the Trust individually but binding
only upon the assets and property of the Trust.
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as
of the day and year first written above.
By: /S/ Xxxx X.
Xxxxxxx
Name:
Xxxx X. Xxxxxxx
Title: President
& Chief Investment Officer
Attest:
ASCENDANT
CAPITAL PARTNERS
By: /S/ Xxxx X.
Xxxxxxx
Name:
Xxxx X. Xxxxxxx
Title: President
& Chief Investment Officer
Attest:
SCHEDULE
A DATED DECEMBER 22, 2008
TO
THE
DATED
DECEMBER 22, 2008
BETWEEN
AND
ASCENDANT
CAPITAL PARTNERS LP
FUNDS
ACP
Advantage Series Strategic Opportunities Fund
ACP
Institutional Series Strategic Opportunities Fund
