FIXED INCOME INVESTMENT MANAGEMENT AGREEMENT
This Agreement ("Agreement") is made this 26 day of March, 2002 by and
between Xxxxxxxx Inc., an Arkansas corporation, and ACA Financial Guaranty Corp.
(the "Client").
In consideration of the premises and the mutual covenants and conditions
herein contained, the parties agree as follows:
1. INVESTMENT ADVICE. Xxxxxxxx Inc., acting through its Xxxxxxxx
Capital Management Division ("SCM"), shall provide the Client with investment
advice and management services in the manner and to the extent that SCM shall
determine to be appropriate or which is reasonably requested by the Client. Such
investment advice and management services shall be limited to only those
securities and other property, which the Client designates as being covered by
SCM's authority. Client has informed SCM that it desires its funds to be
invested primarily in bonds and other income-oriented securities.
2. DISCRETIONARY AUTHORITY. The Client hereby appoints SCM as the
Client's agent and attorney in fact and authorizes SCM to invest Client's funds,
on Client's behalf, in U.S. Treasury securities and other investment grade bonds
selected by SCM with due consideration for our intermediate term outlook for
interest rates and to make such trades of securities or other property as SCM
acting through its Capital Management Committee in the exercise of its
discretion determines to be prudent and appropriate and to make all related
transfers and deliveries of and receive and pay for all such securities and
other properties on behalf of the Client. This authorization is being executed
and delivered pursuant to Section 11(a) of the Securities Exchange Act of 1934
and Rule 11a2-2(T) thereunder.
The Client hereby ratifies and confirms all transactions, which are made by
SCM for the Client's account in accordance with the terms of this Agreement.
3. OTHER SERVICES. SCM shall provide such brokerage, clearance,
settlement, custodial and other functions and services permitted by law as may
be determined by SCM to be necessary or desirable in carrying out the terms of
this Agreement. The Client may request that SCM utilize brokers other than SCM
to effect or execute transactions but agrees to pay any charges or commissions
incurred.
4. COMPENSATION. SCM shall be paid for its services hereunder in
accordance with the fee schedule attached hereto as EXHIBIT X.
Xxxxxxxx Inc. has discretion to invest Client funds in investment company
securities ("Mutual Funds"). Individual Mutual Funds may pay fees to Xxxxxxxx
Inc. as a result of these investments. These fees received by Stephens would be
in addition to the advisory fees paid by Client. Such fees are not credited back
to Client in calculating the fees set forth in Exhibit A. The existence of
Mutual Fund fees is more fully described in the fund prospectus mailed to each
Client at the time of initial investment.
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5. CASH BASIS ACCOUNT. Unless otherwise agreed, each account of the
Client covered by this Agreement shall be a cash account (the "account"); and
accordingly (a) full cash payment for each security or other property purchased
will be made promptly unless funds sufficient therefore are already provided;
(b) no sale is contemplated of any security or other property before it is paid
for as provided in the preceding clause; (c) each security or other property
sold will at the time be owned by the Client and, unless already lodged in the
account, will be promptly delivered thereto; and (d) full cash payment will be
made promptly of any amount which may become due in order to meet necessary
requests for additional deposits or xxxx to market with respect to any unissued
security purchased or sold.
6. RECORDS AND REPORTS. SCM shall provide the Client with written
confirmations of each trade, monthly brokers' statements and quarterly
investment management reports or other periodic reports concerning the
transactions effected in the account.
7. TERM. The term of this Agreement shall be for a period of one year
beginning on the date first above written; provided that it shall automatically
be renewed for successive additional one year terms without further action by
the parties. This Agreement may be terminated by either the Client or SCM upon
fifteen (15) days notice given in writing to the other party hereto, provided
however, that the Client may terminate this Agreement without penalty within
five (5) business days after entering into this Agreement. Upon termination of
this Agreement and payment of all sums which may be owing to it under this
Agreement, SCM shall make such disposition of the securities or other property
of the Client held by it as may be directed by the Client. The Client agrees to
pay SCM the reasonable costs and expenses of collection, including attorney's
fees, for any unpaid balance under this Agreement.
8. SUBJECT TO LAW. All transactions under this Agreement shall be
subject to applicable laws, rules and regulations of governmental authorities,
and the applicable regulations and customs of exchanges, markets and
clearinghouses. Whenever any law, rule or regulation is enacted by any
governmental authority or exchange, market or clearing house which shall affect
in any manner or be inconsistent with any of the provisions hereof, the
provisions of this Agreement so affected shall be deemed modified or superseded
to the extent necessary in order to avoid violation of such enactment.
9. WAIVER. Except as otherwise provided for herein, no provision of
this Agreement shall be waived, altered, modified or amended except in writing
signed by the party against whom such waiver, alteration, modification or
amendment is sought to be enforced.
10. NO ASSIGNMENT OF AGREEMENT OR DUTIES. Neither party may assign
this Agreement, in whole or in part, nor delegate, except as contemplated
herein, all or part of the performance of duties required of it by this
Agreement without the prior written consent of the other party, and any
attempted assignment or delegation without such consent shall be void.
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11. LIABILITY AND INDEMNIFICATION. The Client specifically
acknowledges and agrees that (a) SCM is not warranting to the Client that the
information or advice given to the Client is correct or accurate or that the
assets managed by SCM will necessarily increase in value or retain their value,
and (b) except for gross negligence or malfeasance, or violation of applicable
law, neither SCM nor any of SCM's officers, directors, agents or employees shall
be liable hereunder for any action performed or omitted to be performed or for
any errors of judgment in managing the account. Nothing herein shall in any way
constitute a waiver or limitation of any rights, which the Client may have under
any securities laws. To the extent consistent with the foregoing, Client agrees
to indemnify and hold harmless SCM, its officers, shareholders, agents and
employees from any and all the liability that may be incurred by SCM as a result
of its rendering advice or management services to the Client pursuant to the
terms of this Agreement and shall reimburse SCM for any attorney fees or costs
resulting from any claim or litigation.
12. NOTICE. Any notice, request or instruction to be given hereunder
shall be in writing and delivered personally or sent by first class mail,
postage prepaid, addressed if to SCM to Stephens Capital Management, 000 Xxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 and if to the Client to the address set out
below. With respect to SCM such communication shall be effective when actually
received by SCM.
13. GOVERNING LAW. This Agreement is entered into and shall be
governed by the Laws of the State of Arkansas and such federal statutes, rules
and regulations as may be applicable hereto.
14. VALUATION. In computing the market value of any investment of the
Client each security listed on any national securities exchange and for which
recent market quotations are readily available shall be valued at the last
reported sale price on the principal exchange on which such security is traded,
or, if there has been no recent reported sale, at the last reported bid price.
Where market quotations are readily available, unlisted securities shall be
valued at the current bid price. Any other security or asset shall be valued in
a manner determined in good faith by SCM to reflect its fair market value.
15. PERIODIC REPORTS. SCM shall furnish continuous advice as to the
investment of funds on the basis of the individual needs of the Client and, at
least quarterly, provide the Client with a statement of the account which shall
constitute a reminder to communicate any change in the Client's financial
situation and needs to SCM.
16. OWNERSHIP OF FUNDS. The Client shall maintain to the extent
reasonably practicable every indicia of ownership of its funds, including (1)
the right to withdraw, hypothecate, vote or pledge securities; and (2) the
receipt of a notification of each security transaction. The Client shall have
the opportunity and authority to instruct SCM in writing to refrain from
purchasing particular securities which otherwise might be purchased.
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17. SERVICES TO OTHER CLIENTS; VIOLATION OF LAWS.
(a) It is understood that SCM performs investment management services
for various Clients. The Client acknowledges that SCM may give advice and take
action with respect to any of its other Clients, which may differ from advice
given with respect to any security or other property, or the timing or nature of
action taken with respect to any security or other property.
(b) Nothing in this agreement shall impose upon SCM any obligation to
purchase or sell, or to recommend for purchase or sale, any security for the
Client which SCM, or its partners, 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 discretion of SCM such investment would be unsuitable for
Client or if SCM determines in the best interest of Client it would be
impractical or undesirable.
(c) SCM shall have no obligation hereunder to cause Client to engage
in any transaction on the basis of any information known to SCM's partners,
principals, affiliates, employees or agents wherein the utilization of such
information might, in SCM's judgment, constitute or involve a violation of law
or a breach of any fiduciuary or confidential relationship by SCM and/or its
partners, principals, affiliates, employees or agents.
18. ARBITRATION DISCLOSURES:
ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT,
INCLUDING THE RIGHT TO JURY TRIAL.
PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND
DIFFERENT FROM COURT PROCEEDINGS.
THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDING
OR LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF
RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
19. ARBITRATION. THE CUSTOMER AGREES, AND BY CARRYING AN ACCOUNT FOR
THE CUSTOMER SCM AGREES THAT ALL CONTROVERSIES WHICH MAY ARISE BETWEEN THE
PARTIES CONCERNING ANY TRANSACTION OR THE CONSTRUCTION, PERFORMANCE OR BREACH OF
THIS OR ANY OTHER AGREEMENT BETWEEN THE PARTIES PERTAINING TO SECURITIES AND
OTHER PROPERTY, WHETHER ENTERED INTO PRIOR, ON OR SUBSEQUENT TO THE DATE HEREOF,
SHALL BE DETERMINED BY ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT SHALL
BE CONDUCTED BEFORE THE NEW YORK STOCK EXCHANGE, INC. OR AN ARBITRATION FACILITY
PROVIDED BY ANY OTHER EXCHANGE OF WHICH XXXXXXXX INC. IS A MEMBER, OR THE
NATIONAL ASSOCIATION OF
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SECURITIES DEALERS, INC. OR THE MUNICIPAL SECURITIES RULEMAKING BOARD AND IN
ACCORDANCE WITH THE RULES OF THE SELECTED ORGANIZATION. THE CUSTOMER MAY ELECT
IN THE FIRST INSTANCE WHETHER ARBITRATION SHALL BE BY AN EXCHANGE OR SELF-
REGULATORY ORGANIZATION OF WHICH XXXXXXXX INC. IS A MEMBER, BUT IF THE CUSTOMER
FAILS TO MAKE SUCH ELECTION BY REGISTERED LETTER OR TELEGRAM ADDRESSED TO SCM
AT ITS MAIN OFFICE BEFORE THE EXPIRATION OF TEN DAYS AFTER RECEIPT OF A WRITTEN
REQUEST FROM SCM TO MAKE SUCH ELECTION, THEN SCM MAY MAKE SUCH ELECTION. THE
AWARD OF THE ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE FINAL, AND
JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY COURT, STATE OR FEDERAL,
HAVING JURISDICTION.
20. SUPPLEMENTAL AGREEMENTS AND DISCLOSURES. Attached hereto as
EXHIBIT B are Supplemental Agreements and Disclosures that may be applicable to
certain transactions related to this account. Client also acknowledges SCM has
provided Client with its Part II or Schedule H of Stephens Form ADV.
IN WITNESS WHEREOF, the Client has executed this Agreement and it has
been accepted by Xxxxxxxx Inc. in Little Rock, Arkansas as of the date first
above written.
PRE-DISPUTE ARBITRATION CLAUSE. CLIENT ACKNOWLEDGES THAT THIS
AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE, WHICH PROVIDES THAT ALL
DISPUTES RELATING TO THE CLIENT'S ACCOUNT ARE TO BE RESOLVED BY BINDING
ARBITRATION. THIS CLAUSE IS FOUND IN SECTIONS 18 AND 19 ON PAGES 4 AND 5 OF THIS
AGREEMENT.
Client: American Capital Access Holdings, Inc.
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ACA Financial Guaranty Corp.
Address: 000 Xxxxxxxx, 00xx Xxxxx
-----------------------------------------
Xxx Xxxx, Xxx Xxxx 00000
-----------------------------------------
3/26/2002 /s/ Xxxx Xxxxxxxx
-------------------- -----------------------------------------
(Date) (Signature)
Xxxx X. Xxxxxxxx
XXXXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
--------------------------------------
A Duly Authorized Officer
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EXHIBIT A
XXXXXXXX CAPITAL MANAGEMENT
A DIVISION OF XXXXXXXX INC.
MANAGEMENT FEE SCHEDULE
FOR FIXED INCOME ACCOUNTS
ASSET VALUE OF CLIENTS ACCOUNT ANNUAL FEE
On the first $1,000,000 or portion thereof .750%
On the next $4,000,000 or portion thereof .500%
On the next $10,000,000 or portion thereof .375%
On the next $15,000,000 or portion thereof .250%
On the next $20,000,000 or portion thereof .200%
On account over $50,000,000 Entire amount .200%
Other 15 BP
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SCM fees apply to standard accounts and include management, brokerage services
(1), custodial services, associated accounting reports and investment management
reports. Only in special circumstances are the fees negotiable or otherwise
varied from the above schedule. In the event this agreement is terminated
between quarter-ends, such fees shall be prorated as of the date of termination.
The fee is deducted from the account by SCM quarterly unless otherwise agreed in
writing. SCM clients will receive a Fee Statement shortly after the deduction of
the fee.
The fee for the period from the effective date to the end of the current
calendar quarter shall be obtained by computing the adjusted (2) market value of
cash and securities in the portfolio as of the close of business on the last day
(subsequent to the effective date referred to above) of the current calendar
quarter and multiplying the resultant market value by one-fourth of the
applicable annual fee rate(s) indicated above, pro-rated for the percentage of
the current calendar quarter during which the portfolio is under management.
The fee for any subsequent three-month period shall be the amount obtained by
computing the adjusted (2) market value of cash and securities in the portfolio
as of the close of business on the last day of the three-month period and
multiplying the resultant market value by one-fourth of the applicable annual
fee rate(s) indicated above.
(1) Investment advisory clients have the option to seek execution of
transactions recommended by SCM through broker-dealers other than Xxxxxxxx Inc.
However, on transactions executed through Xxxxxxxx Inc., Xxxxxxxx Inc. will not
charge a commission to the client except when shares of an underwriting
issue in which Xxxxxxxx Inc. is in the syndicate are purchased for the account,
in which case the sales and underwriting fees are built into the offering price.
(2) Adjusted for capital contributions and/or withdrawals made during that
period.
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EXHIBIT B
SUPPLEMENTAL AGREEMENTS AND DISCLOSURES
(FOR ERISA PLANS AND OTHER CLIENTS BOTH REFERRED TO AS "CLIENT")
1. AGENCY CROSS TRANSACTIONS
From time to time, Xxxxxxxx Inc.'s SCM Division may effect a securities
transaction for an SCM Client in which Xxxxxxxx Inc. acts as broker for both
such SCM Client and for a non-SCM client on the other side of the transaction.
In other words, SCM may be in a position to buy or sell securities for an SCM
Client from or to the account of another client of Xxxxxxxx Inc. Such purchases
or sales are known as "agency cross-transactions."
In certain cases, agency cross-transactions can increase the chances that
large orders from Clients will be effected at a price close to the most recent
market price. For example, if SCM enters the market with a large buy order from
a Client in a given security, the very existence of that large order may drive
up the price of the securities transaction. Likewise, if SCM enters the market
with a large sell order from a Client in a given security, that order can drive
down the price of the security before the order can be completed. In addition,
many institutional investors trade large blocks of securities through agency
cross-transactions, so that many blocks are simply unavailable to Clients unless
they are authorized to participate in such crosses.
On the other hand, agency cross-transactions involve a potential conflict
of interest. SCM may be making investment decisions for an SCM Client, from whom
it receives compensation, while Xxxxxxxx Inc. receives commissions from another
non-SCM client for effecting or executing the transaction. For this reason, SEC
Rule 206(3-2) imposes various conditions on agency cross-transactions effected
for an advisory client by an investment adviser registered with the SEC such as
SCM.
SCM plans to comply with SEC Rule 206(3-2) by taking the following actions:
(i) SCM, after disclosing the above potential conflict of interest, will have
received the specific consent and permission of the Client to effect agency
cross-transactions for such Client; (ii) the Client will receive from SCM a
written confirmation, at or before the completion of each agency
cross-transaction, including a statement of the nature of the transaction, the
date of such transaction, an offer to furnish, upon request, the time when such
transaction took place, and certain information concerning whether any other
remuneration has been or will be received by SCM or Xxxxxxxx Inc. in connection
with the transaction and, if so, that the source and amount of such other
remuneration will be furnished upon written request of the Client; (iii) the
Client will receive from SCM on an annual basis a written disclosure statement
identifying the total number of agency cross-transactions during the period
since the date of the last such statement and the total amount of commissions or
other remuneration received by SCM and Xxxxxxxx Inc. in connection with such
transactions during that period; (iv) the Client is hereby informed that it may
revoke at any time by written notice the authorization and consent for SCM to
engage in agency cross-transactions; (v) SCM will not engage in any agency
cross-transaction in which SCM or Xxxxxxxx Inc. recommends the transaction to
both the seller and the purchaser; (vi) SCM will, at all times, fulfill its duty
with respect to providing best price and execution; (vii) with respect to ERISA
Clients, SCM will only engage in agency cross-transactions executed on a
national securities exchange; and (viii) SCM will comply with all other
applicable disclosure requirements under federal or state securities laws.
Client has read the foregoing disclosure and specifically consents to permit
SCM to engage in agency cross-transactions pursuant to the terms and conditions
set forth above. Client and SCM agree that
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such consent may be revoked without penalty at any time by Client effective
upon receipt of written notice by SCM.
II. PRINCIPAL TRANSACTIONS
For time to time, Xxxxxxxx Inc.'s SCM Division may wish to effect a
securities transaction for an SCM Client in which Xxxxxxxx Inc. acts as
principal.
For instance, SCM may independently determine that it would be in the best
interest of an SCM Client to purchase a new issue where Xxxxxxxx Inc. is in the
underwriting syndicate or selling group because SCM believes that the price paid
during the initial offering will be more advantageous to the Client than
purchasing in the after-market. Or SCM may determine that it would be in the
best interest of a Client to purchase or sell a security in which Xxxxxxxx Inc.
makes a market.
Such principal transactions involve potential conflicts of interest,
regarding Xxxxxxxx Inc.'s interest and the interest of SCM Clients.
If SCM purchases for an SCM Client a security from Xxxxxxxx Inc. which is
part of an initial public offering in which Xxxxxxxx Inc. is a member of the
underwriting or selling syndicate, Xxxxxxxx Inc. will receive an underwriting
commission or selling concession, which is built into the offering price; also,
Xxxxxxxx Inc. would have a self-interest in the success of the offering and in
disposing of its commitment. Therefore, such principal transactions will only be
effected for SCM Clients if advance disclosure in writing is made to the Client
that Xxxxxxxx Inc. will be acting as a member of the underwriting syndicate or
selling group; the Client receives a prospectus; and the Client grants SCM
permission to effect the transaction.
If SCM purchases or sells for an SCM Client an over-the-counter security in
which Xxxxxxxx Inc. makes a market, Xxxxxxxx Inc. would ordinarily receive a
xxxx-up or xxxx-down if it acts as principal in the transaction. Therefore, such
principal transactions will only be effected for SCM Clients if Xxxxxxxx Inc.
matches the lowest ask/highest bid prices as reflected on NASDAQ; no xxxx-up or
xxxx-down from these prices will be charged.
With respect to ERISA accounts, Client acknowledges that SCM and/or
Xxxxxxxx Inc. will not act as principal in transactions with the account.
With respect to non-ERISA accounts, Xxxxxxxx Inc. is authorized by Client
to act as principal in transactions with such accounts, and Client so consents
even though such transactions may present potential conflicts of interest. In
giving this consent, Client understands that SCM will comply with the provisions
of Section 206 (3) of the Investment Advisers Act, which requires that Xxxxxxxx
Inc. acting as principal for its own accounts, will not knowingly sell any
security to or purchase any security from an SCM Client without disclosing to
such Client in writing before the completion of such transactions the capacity
in which it is acting and obtaining the Client's advance consent contained
herein to such types of transactions. The above disclosure to the Client will be
made by sending to the Client a written confirmation, at or before the
completion of such transaction, showing, by special codes or otherwise, the
capacity in which SCM or Xxxxxxxx Inc. is acting. Further, such confirmation
will disclose other material information (i.e., that Xxxxxxxx Inc. makes a
market in the security or that an officer or director of Xxxxxxxx Inc. serves as
an officer or director of the issuer). In addition, the special procedures
described above will be utilized for initial public offerings in which Xxxxxxxx
Inc. is participating.
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