Exhibit (d)(38)
MONEY MANAGER AGREEMENT
This Agreement is between the TIFF Investment Program, Inc. ("TIP"), a
Maryland Corporation, for its TIFF Multi-Asset and such other of its Funds as
TIP and the Manager (as defined below) may agree upon from time to time (the
"Fund") and K.G. Xxxxxxx & Associates, LLC, a registered investment adviser
under the Investment Advisers Act of 1940 (the "Manager") and is effective as of
June 10, 2003 (the "Effective Date").
RECITALS
TIP is an open-end management investment company registered under the
Investment Company Act of 1940 (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.
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 Foundation Advisers, Inc. ("FAI") 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:
(i) acquire (by purchase, exchange, subscription, or otherwise), to
hold, and to dispose of (by sale, exchange, or otherwise)
securities and other investments;
(ii) determine what portion of the Managed Assets will be held
uninvested; and
(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.
(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 FAI 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"):
(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;
(ii) TIP's Registration Statement under the 1940 Act and the
Securities Act of 1933 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");
(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 FAI and the Manager;
(iv) written instructions and directions of the board of directors of
TIP; and
(v) written instructions and directions of FAI.
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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 so notifies the Manager, the Manager shall promptly take such
actions not inconsistent with applicable law as the Fund 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 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 FAI such periodic and special reports as the board or FAI 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. In Manager's selection of such brokers,
Manager may take into consideration the broker's commission rates or principal
spreads, research capabilities, executions, reliability, efficiency and other
factors. In addition, subject to the approval of FAI and compliance with Section
28(e) of the Securities Exchange Act of 1934, as amended, in evaluating the best
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overall terms available, the Manager may consider the brokerage and research
services provided to the Fund and to the Manager. The Fund shall be responsible
for all brokerage fees and costs. 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.
(b) Aggregating Orders. On occasions when the Manager deems the purchase or
sale of a security to be in the best interest of Fund as well as other advisory
funds 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 Manager in the manner it considers to be
most equitable and consistent with its fiduciary obligations to Fund and its
other funds.
(c) The Custodian. All Managed Assets, including cash and equivalents,
shall be held by Custodian. 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 by the tenth business day of the following month in
connection with this Agreement. The applicable fee rate will be applied to the
average daily net assets (gross of expenses except custodian transaction
charges) of the Managed Assets, computed as described in the Fund's Registration
Statement, pursuant to this Agreement.
(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,
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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 funds, 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 fund. 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 Fund.
8. LIABILITY
The Manager shall not be liable to Fund, TIP, or FAI 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 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) 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.
9. REPRESENTATIONS AND UNDERTAKINGS
(a) The Manager hereby confirms to the Fund that the Manager is registered
as an investment adviser under the Investment Advisers Act of 1940, 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.
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(b) The Manager represents that it complies in all material respects with
all applicable laws, both federal and state.
(c) 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.
(d) TIP acknowledges receipt of the Manager's Form ADV and Commodity
Trading Advisor (CTA) Disclosure Document (if applicable).
(e) TIP represents that TIP and the Fund are in material compliance with
all applicable state and federal securities laws and regulations.
(f) To facilitate the Manager's fulfillment of its obligations under this
Agreement, TIP undertakes the following:
(i) 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;
(ii) 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
(iii) 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.
10. TERM
This Agreement shall continue in effect for a period of two (2) years 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).
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11. 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.
12. 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
c/o Foundation Advisers, Inc.
000 Xxxxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Manager: K.G. Xxxxxxx & Associates, LLC
000 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000
Each party may change its address by giving notice as herein required.
13. 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.
14. 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.
15. 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 Virginia
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.
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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.
On behalf of Fund by the On behalf of Manager by Xxxxxxx
TIFF Investment Program, Inc. Management, Inc., Manager of
K.G. Xxxxxxx & Associates, LLC
/s/ Xxxxxx Xxxx /s/ Xxx X. Xxxxxxx
---------------------------------- ----------------------------------
Xxxxxx Xxxx/President Signature
Xxx X. Xxxxxxx, Manager
----------------------------------
Print Name/Title
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EXHIBIT A TO MONEY MANAGER AGREEMENT BETWEEN
MANAGER AND
TIFF MULTI-ASSET FUND
FEE CALCULATION
Compensation shall be calculated in accordance with Section 6 of this Agreement
at the rate of:
75 basis points per annum (.000625% per month) on the first $30
million of Managed Assets;
50 basis points per annum (.00041667% per month) thereafter.
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EXHIBIT B TO MONEY MANAGER AGREEMENT BETWEEN
MANAGER 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.
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