EXHIBIT EX-99.D.7
INVESTMENT MANAGEMENT CONTRACT
BETWEEN
HILLVIEW INVESTMENT TRUST II
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
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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
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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.
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.
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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.
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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
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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.
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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.
HILLVIEW INVESTMENT TRUST II:
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
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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
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