AGREEMENT
Exhibit 10.10
This Agreement (the “Agreement”) is made and
entered into as of this 23rd day of August 2012 by and among T BANK, N.A. (“T Bank”), a national association, and Xxxx, Xxxxxxx & Associates, P.L.L.C., a Texas professional limited liability company (“Xxxx Xxxxxxx”).
RECITALS
WHEREAS, T Bank previously entered into an Advisory Services Agreement with III:I Financial Management Research, L.P. (“FMR”), joined by Xxxx Xxxxxxx, dated April 27, 2006, and amended by that certain letter, dated December
14, 2007 and the Amendment No. 2 to the Advisory Services Agreement, dated October 4, 2010 (as so amended, the “2006 Agreement”);
WHEREAS, T Bank has established certain collective investment funds (collectively, the “CIFs”) pursuant to 12 CFR 9.18(a)(1) (the “AI Funds”),
which are maintained exclusively for the collective investment and reinvestment of money contributed to A1 Funds by T Bank, in its capacity as trustee, executor, administrator, guardian or custodian under a Uniform Gifts to Minors Act, and pursuant to
12 CFR 9.18(a)(2) (the “A2 Funds”), which are maintained for the collective investment and reinvestment of funds consisting solely of assets of a retirement,
pension, profit sharing, stock bonus or other trusts that are exempt from federal income tax;
WHEREAS, T Bank has decided to make certain changes with respect to the administration of the CIFs and, as a result, T Bank has agreed with
FMR and Xxxx Xxxxxxx that the 2006 Agreement no longer accurately reflects the duties, responsibilities and obligations of the parties thereto; and
WHEREAS, effective as of the date hereof, T Bank, FMR and Xxxx Xxxxxxx have terminated the 2006 Agreement and, in lieu thereof, T Bank and
FMR have agreed to an Investment Advisory Agreement (“Investment Advisory Agreement”) and T Bank and Xxxx Xxxxxxx have entered into this Agreement.
NOW, THEREFORE, for and in consideration of mutual promises, covenants and other valuable consideration herein expressed, the parties
hereto agree as follows:
1. Agreement.
1.01 T Bank and Xxxx Xxxxxxx hereby contract for the purposes of Xxxx Xxxxxxx providing the services contemplated by Section 2 hereof
to T Bank.
2. Duties of Xxxx Xxxxxxx.
2.01 Services. With respect to persons (the “Clients”) who have appointed Xxxx Xxxxxxx as
their registered investment advisor pursuant to a written agreement (the “CWA Client Agreements”) between such Client and Xxxx Xxxxxxx, and in connection
therewith have chosen to appoint T Bank as a fiduciary or custodian with respect to certain of such person’s assets and who have opened an account(s) with T Bank pursuant to a trust or custodial agreement with T Bank for the purposes of establishing
a trust or custody account at T Bank (collectively, a “Trust Account”), Xxxx Xxxxxxx will consult with the Client regarding the Client’s overall investment
portfolio objectives and risk tolerance taking into consideration any existing investment assets maintained in the Trust Account. Cain Waiters will assist the Client in the preparation of an applicable overall or individual account investment policy
statement(s) based on Xxxx Xxxxxxx’ consultation with Client described above and make recommendations to the Client as to an asset allocation with respect to the Client’s Trust Account. If requested by the Client, Xxxx Xxxxxxx will assist the Client
in completing any account agreements, including, without limitation, documents related to asset allocation, provided by T Bank and upon execution by the Client, promptly send such agreements and documents to T Bank. The foregoing duties of Xxxx
Xxxxxxx are referred to herein as the “Services.”
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2.02 Standard of Performance. Xxxx Xxxxxxx will use its best efforts to act in an ethical, truthful, and appropriate manner in performing the services contemplated by this
Agreement.
3. Representations of Xxxx Xxxxxxx.
Xxxx Xxxxxxx makes the following representations and warranties to T Bank:
3.01 Registered Investment Advisor. Xxxx Xxxxxxx is and shall remain at all times during the term of this Agreement registered as an investment adviser with the US Securities and
Exchange Commission (the “SEC”).
3.02 Performance of Obligations. Only Xxxx Xxxxxxx and Xxxx Xxxxxxx employees will perform the Services. In performing the Services, Xxxx Xxxxxxx
will perform in a manner consistent with all applicable federal and state securities laws and state ethics laws,
and the rules and regulations thereunder. Xxxx Xxxxxxx has all permits, licenses, certificates of authority, orders and approvals of, and has made all filings, applications and registrations with, federal, state or local governmental or regulatory
bodies that are required in order to permit Xxxx Xxxxxxx to perform its duties hereunder in accordance with applicable law. Neither Xxxx Xxxxxxx nor any person associated with Xxxx Xxxxxxx are persons (a) subject to an SEC order issued under Section
203(f) of the Investment Advisers Act of 1940 (“Advisers Act”), (b) convicted within the previous ten years of any felony or misdemeanor involving
conduct described in Section 203(e)(2)(A)-(D) of the Advisers Act, (c) who have been found by the SEC to have engaged, or have been convicted of engaging, in any of the conduct specified in paragraphs (1), (5) or (6) of Section 203 of the Advisers
Act, or (d) subject to an order, judgment or decree described in Section 203(e)(4) of the Advisers Act.
3.03 No Conflicts of Interest. Xxxx Xxxxxxx is free to engage in the work necessary to actively provide the Services hereunder without conflict with the interests of any other
person, including, without limitation, the Clients, or interference from any other activity.
3.04 No Advertising of CIFs. Xxxx Xxxxxxx has not engaged in any general solicitation or general advertisement of the A1 Funds to the general public in any manner that would
violate the Securities Act of 1933, as amended (the “Act”) and has not advertised or publicized
the A2 Funds, except pursuant to any electronic or written materials provided, from time to time, to Xxxx Xxxxxxx by T Bank. Further, Xxxx Xxxxxxx has not engaged in any conduct that would require the registration of the CIFs or any interests therein
under the Act or the Investment Company Act of 1940, as amended. In the course of providing services to the Clients under the CWA Client Agreements, Xxxx Xxxxxxx understands that the CIFs are operated by T Bank for the administrative convenience of T
Bank in a manner incidental to T Bank’s trust department activities and not primarily for investment in the CIFs.
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3.05 No Discretion Over Client Funds. Xxxx Xxxxxxx does not have discretionary authority with respect to any of the assets in any Trust Account, and the Clients have made their
own decisions with respect to establishing or maintaining the Trust Account and with respect to the investment allocations in the Trust Account, including any such allocations to the CIFs.
3.06 Execution and Delivery. Xxxx Xxxxxxx has full legal capacity and authority to execute, deliver, and perform this Agreement. This Agreement constitutes the legal, valid and
binding obligation of Xxxx Xxxxxxx, enforceable against it in accordance with its terms.
3.07 Noncontravention. Xxxx Xxxxxxx is not in violation of its organizational certificates or bylaws, or in violation in any material respect with any applicable law, statute or
regulation of any governmental agency, board, bureau or body relating to the conduct of its business, including without limitation, rules, regulations and other pronouncements of the SEC, or in violation or default with respect to any order, writ,
injunction, decree or demand of any court or other governmental or regulatory authority, any license or regulation of any governmental agency, or in default under any indenture, mortgage, lease, agreement or other instrument under which Xxxx Xxxxxxx
is obligated, which violation or default, respectively, would result in a material adverse effect on the financial condition or results of the operations of Xxxx Xxxxxxx or impair Xxxx Xxxxxxx’ ability to provide the Services. Neither the execution,
delivery or performance of this Agreement, nor the consummation of the transactions contemplated hereby will conflict with, or result in a breach of the terms, conditions or provisions of, or constitute a default under the organizational certificates
or bylaws of Xxxx Xxxxxxx or of any material agreement, indenture, instrument, lien, charge, encumbrance or undertaking of Xxxx Xxxxxxx.
3.08 Organization and Qualification. Xxxx Xxxxxxx is organized, validly existing, and in good standing under the laws of the State of Texas. Xxxx Xxxxxxx has all requisite power
and authority (including all licenses, franchises, permits, and other governmental authorizations as are legally required) to conduct its business, and carry out its obligations under this Agreement.
3.09 Consents and Approvals. No consent, approval or order of any governmental or administrative board or body, including without limitation, the SEC and the Financial Industry
Regulatory Authority, is required for the execution and delivery by Xxxx Xxxxxxx of this Agreement.
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4. Representations of T Bank. T Bank makes the following representations and warranties to Xxxx Xxxxxxx:
4.01 Execution and Delivery. T Bank has full legal capacity and authority to execute, deliver, and perform this Agreement. This Agreement constitutes the legal, valid and binding
obligation of T Bank, enforceable against it in accordance with its terms.
4.02 Noncontravention. T Bank is not in violation of its organizational certificates or bylaws, or in violation in any material respect with any applicable law, statute or
regulation of any governmental agency, board, bureau or body relating to the conduct of its trust business, including without limitation, rules, regulations and other pronouncements of the Office of the Comptroller of the Currency (the “OCC”), or in violation or default with respect to any order, writ, injunction, decree or demand of any court or other governmental or regulatory authority, any
license or regulation of any governmental agency, or in default under any indenture, mortgage, lease, agreement or other instrument under which T Bank is obligated, which violation or default, respectively, would result in a material adverse effect
on the financial condition or results of the operations of T Bank or impair T Bank’s ability to perform its obligations under this Agreement. Neither the execution, delivery or performance of this Agreement, nor the consummation of the transactions
contemplated hereby will conflict with, or result in a breach of the terms, conditions or provisions of, or constitute a default under the organizational certificates or bylaws of T Bank or of any material agreement, indenture, instrument, lien,
charge, encumbrance or undertaking of T Bank.
4.03 Organization and Qualification. T Bank is organized, validly existing, and in good standing under the laws of the United States of America. T Bank has all requisite power and
authority (including all licenses, franchises, permits, and other governmental authorizations as are legally required) to conduct its business, and carry out its obligations under this Agreement.
4.04 Consents and Approvals. No consent, approval or order of any governmental or administrative board or body, including without limitation, the OCC, is required for the
execution and delivery by T Bank of this Agreement.
5. Covenants.
5.01 Full Cooperation. T Bank
and Xxxx Xxxxxxx agree to cooperate fully with each other with respect to any governmental investigation or administrative or judicial proceeding and in connection with any consumer complaint with respect to the transactions of the trust or custodial
business by T Bank, including, without limitation, any of the Trust Accounts, and in connection with any claims by Clients with respect to the Trust Accounts. To the extent permitted by applicable law, each party shall consult with the other party
hereto before responding to any such investigation, administrative or judicial proceeding on a consumer complaint, and each party shall keep the other fully advised as to the status thereof. From time to time and upon the written request of Xxxx
Xxxxxxx, T Bank will make available lists of Clients as recorded in T Bank’s trust accounting system.
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5.02 Untrue Representations. Each of Xxxx Xxxxxxx and T Bank agrees to promptly notify the other party in the event any of the representations and warranties made in Sections 3 or
4 of this Agreement, respectively, become inaccurate at any time during the Term (as defined herein) of this Agreement.
5.03 Independent Contractor. Any provision of this Agreement to the contrary notwithstanding, Xxxx Xxxxxxx and T Bank agree that no employee of Xxxx Xxxxxxx shall be deemed to be
an employee of T Bank for any purpose whatsoever, and that no employee of Xxxx Xxxxxxx shall be entitled to receive any remuneration or other compensation from T Bank or any agent or subagent of T Bank; no employee of Xxxx Xxxxxxx shall have the
authority or right to enter into any contracts, obligations or commitments which shall be legally binding on T Bank.
5.04 Preservation of Business Relationships. Each of Xxxx Xxxxxxx and T Bank shall use their respective commercially reasonable best efforts to preserve the other parties’
business relations with the Clients, and agrees not to solicit them to change service providers with respect to the services provided to such Clients by Xxxx Xxxxxxx and T Bank, respectively during the Term (as defined herein) of this Agreement.
Notwithstanding the foregoing sentence, neither Xxxx Xxxxxxx nor T Bank shall be deemed to be in violation of this Section 5.04 by virtue of general advertising, mass mailing, telemarketing or other marketing or public relations that is intended to
reach individuals or groups that are broader than the Clients. Each of Xxxx Xxxxxxx and T Bank agrees to refrain from taking any action that would damage the other party’s business relations with the Clients or business prospects during the Term (as
defined herein) of this Agreement. The restrictions set forth in this Section 5.04 do not apply to the extent they restrict either Xxxx Xxxxxxx or T Bank from taking or refusing to take any action with respect to the other party’s business
relationship with a Client if such party has reasonably determined, in good faith, that complying with the restrictions above would be likely to constitute a breach of such party’s fiduciary or statutory duties or constitute a breach by Xxxx Xxxxxxx
of any of the terms of a CWA Client Agreement; provided, however, such party shall promptly provide the other party with written notice of such a
determination and the basis or rationale for that decision.
5.05 Compliance with Laws. Each of T Bank and Xxxx Xxxxxxx agrees to use commercially reasonable efforts to comply with all laws, ordinances, rules and regulations applicable to
them as it relates to the Services, and shall cause its employees and agents to do the same. Neither T Bank nor Xxxx Xxxxxxx will knowingly engage in any activity that is a breach of fiduciary duty or that could result in a prohibited transaction
under the Employee Retirement Income Security Act of 1974, as amended, the Internal Revenue Code of 1986, as amended, or the rules, regulations or pronouncements of the Department of Labor or the Internal Revenue Service, respectively.
6. Indemnification.
(a) T Bank hereby agrees to protect,
indemnify and hold harmless Xxxx Xxxxxxx, its members, officers, agents, consultants and employees, from and against any and all claims, costs, losses, damages, and liability incurred by Xxxx Xxxxxxx, its members, officers, agents, consultants or
employees, as a result of the breach or violation of any of the terms of this Agreement by T Bank, or because of any misrepresentation, negligence or intentional wrongful act by T Bank in dealing with any and all third parties, including without
limitation the Clients.
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(b) Xxxx Xxxxxxx hereby agrees to
protect, indemnify and hold harmless T Bank, its agents, consultants, officers, directors, and employees, from and against any and all claims, costs, losses, damages, and liability incurred by T Bank, its agents, consultants, officers, directors, or
employees, as a result of the breach or violation of any of the terms of this Agreement by Xxxx Xxxxxxx or because of any material misrepresentation, negligence or intentional wrongful act by Xxxx Xxxxxxx in dealing with any and all third parties,
including without limitation, the Clients. Xxxx Xxxxxxx shall defend suits or claims for infringement of patent rights, and shall hold T Bank harmless from loss on account thereof.
7. Confidentiality.
(a) Each of Xxxx Xxxxxxx and T
Bank shall keep confidential any information regarding the business and affairs of the other party and the Clients (the “Information”) except in connection with
Xxxx Xxxxxxx rendering the Services under this Agreement. Each of Xxxx Xxxxxxx and T Bank shall take all appropriate steps to ensure that its employees, agents and affiliates hold the Information in confidence and that the Information shall not be
divulged to any third party or used in any manner except for the purposes of performing the services under this Agreement.
(b) In the event that either party
hereto receives a request in the form of a subpoena, order, civil investigative demand or similar process issued by a court of competent jurisdiction or by a governmental or regulatory body requesting that such party disclose all or any part of the
Information, such party agrees to (i) immediately notify the other party of the existence, terms and circumstances surrounding such a request, (ii) consult with the other party on the advisability of taking legally available steps to resist or narrow
such request, (iii) if disclosure of such Information is required, furnish only that portion of the Information which, in the written opinion of counsel to the party receiving such request, such party is legally compelled to disclose, and (iv)
exercise its reasonable best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the disclosed Information as the other party may reasonably designate.
8. Term and Termination.
8.01 Term. Unless earlier terminated as provided in Section 8.02, this Agreement shall expire and terminate on December 1, 2017 (the “Initial Term”); provided that this Agreement shall be automatically extended for an additional
one (1) year term (the “Renewal Term”) unless one hundred eighty (180) days prior to the expiration of the Initial Term or any Renewal Term, either party has
provided written notice of intent to terminate this Agreement. Thereafter, this Agreement shall automatically extend for additional one-year terms on the same basis and with the same termination provisions as the Renewal Term (the Initial Term and
all Renewal Terms shall be the “Term”).
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8.02 Events of Termination. This Agreement shall terminate on the occurrence of any of the following events:
(a) Anything contained herein to
the contrary notwithstanding, in the event T Bank shall discontinue operating its business, this Agreement shall cease and terminate on the first day of the month next following the month in which T Bank ceases operations with the same force and
effect as if the said first day of such month were originally set forth as a termination date hereof;
(b) By delivery through the U.S.
Mail, or by hand, a written notice of termination of this Agreement by one party to the other party as contemplated by Section 8.01;
(c) In the event that T Bank loses
regulatory authority to operate a trust department to provide custodial and fiduciary services or to act as custodian of collective investment funds;
(d) By T Bank or Xxxx Xxxxxxx, upon
the termination of the Investment Advisory Agreement;
(e) By T Bank, in the event any of
the general partners, executive officers or directors of Xxxx Xxxxxxx become the subject of an administrative,
judicial or investigative proceeding, civil or criminal, related to investment advisory services or that would reasonably be
deemed to impair the ability of Xxxx Xxxxxxx to perform its obligations under this Agreement;
(f) By Xxxx Xxxxxxx, in the event T
Bank or any of its executive officers or directors becomes the subject of an administrative, judicial or investigative proceeding, civil or criminal, related to custodial or fiduciary services or that would reasonably be deemed to impair the ability
of T Bank to perform its obligations under this Agreement;
(g) Upon the dissolution or
bankruptcy of any party hereto, or in the event any party shall be placed in receivership or the management of its affairs shall be assumed by any governmental, regulatory or judicial authority, this Agreement shall terminate on the date any such
event shall occur;
(h) By the mutual written consent
of T Bank and Xxxx Xxxxxxx;
(i) By T Bank, in the event that
Xxxx Xxxxxxx fails to comply with its covenants or agreements contained in this Agreement, and such failure is not cured, or if any of the representations or warranties of Xxxx Xxxxxxx contained herein are inaccurate in any material respect, and such
inaccurate representation or warranty is not cured within thirty (30) days after notice from T Bank.
(j) By Xxxx Xxxxxxx, in the event
that T Bank fails to comply with its covenants or agreements contained in this Agreement or in the Investment Advisory Agreement, and such failure is not cured, or if any of the representations or warranties of T Bank contained herein or therein are
inaccurate in any material respect, and such inaccurate representation or warranty is not cured within thirty (30) days after notice from Xxxx Xxxxxxx.
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8.03 Notice of Termination. The power of termination provided for by Section 8 hereof may be exercised only by a notice given in writing, as provided in Section 9.04 hereof.
8.04 Effect of Termination. Without limiting any other relief to which any party hereto may be entitled for breach of this Agreement, if this Agreement is terminated pursuant to
the provisions of Section 8.01 hereof, the provisions of Sections 3, 6, 7 and this Section 8.04 shall survive the expiration or termination of this Agreement.
9. Miscellaneous.
9.01 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any prior written or
oral understanding between the parties with respect to the subject matter hereof. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of, and be binding upon, the respective subsidiaries and
affiliates of the parties hereto. None of this Agreement nor any of the rights, obligations, or liabilities of either party hereto shall be assigned without the prior written consent of the other party. Any such assignment shall be evidenced by a
written document executed by the parties and attached to and made a part of this Agreement.
9.02 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. All claims or causes of action arising out of
this Agreement or any other agreement or document executed by T Bank and Xxxx Xxxxxxx in connection with this Agreement shall be asserted only in a court of appropriate jurisdiction in Dallas County, Texas, and all objections to jurisdiction and
venue in such forum are hereby expressly waived. Each of the parties hereto expressly waives all right to trial by jury in any action or proceeding arising out of this Agreement.
9.03 Attorneys’ Fees. If any act at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable
attorneys’ fees, court costs, and necessary disbursements in addition to any other relief to which such party may be entitled.
9.04 Notice. Any notices to be given hereunder by one party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage
prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing below, but each party may change its address by written notice in accordance with this paragraph. Notices delivered personally shall be
deemed communicated upon actual receipt; mailed notices shall be deemed communicated as of five (5) days after mailing.
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If to T Bank:
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Xxxxxxx Xxxxxx
T Bank, N. A.
00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
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If to Xxxx Xxxxxxx:
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Xxx Xxxxxx
Xxxx, Xxxxxxx and Associates, P.L.L.C.
0000 Xxxxx Xxxxxx Xxxxxxx
Legacy Tower II, Xxxxx 000
Xxxxx, Xxxxx 00000
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9.05 Amendment. This Agreement may be amended from time to time upon mutual agreement by the parties hereto; provided, however, any such amendment shall be evidenced by a written
instrument executed by the parties which is attached to and made a part of this Agreement.
9.06 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws, then (a) such provision will be fully severable
and this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision were not a part hereof; (b) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by such
illegal, invalid or unenforceable provision or by its severance from this Agreement; and (c) there will be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be
possible and still be legal, valid and enforceable.
9.07 Counterparts. This Agreement may be executed in two (2) or more counterparts each of which shall be deemed a duplicate original and each of which shall constitute one and the
same instrument.
(signature page follows)
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T BANK, N.A.
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| /s/ Xxxxxxx Xxxxxx |
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Xxxxxxx Xxxxxx, President and CEO
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| /s/ Xxx Xxxxxx |
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Xxx Xxxxxx, Partner
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