FORM OF INVESTMENT ADVISORY AGREEMENT
Exhibit
28(d)
FORM
OF INVESTMENT ADVISORY AGREEMENT
INVESTMENT
ADVISORY AGREEMENT made and executed the [ ]
day of [ ], 2009, by and between The Alerian
MLP Funds Trust, a Delaware statutory trust (the “Trust”), and Alerian Fund
Advisors, LLC, a Delaware limited liability company (the
“Advisor”):
WHEREAS,
the Trust proposes to engage in business as an investment company and is
registered under the Investment Company Act of 1940, as amended (the “1940 Act”)
as an open-end, diversified management investment company; and
WHEREAS,
the Advisor is registered as an investment advisor under the Investment Advisers
Act of 1940 (the “Advisers Act”), and proposes to engage in the business of
acting as an investment advisor; and
WHEREAS, the Trust desires to retain
the Advisor to render investment advisory and other services to the Trust,
including such investment portfolios of the Trust as are listed on Schedule A
hereto and any additional investment portfolios the Trust may include on
Schedule A as such Schedule may be amended from time to time (such investment
portfolios and any additional investment portfolios are individually referred to
as a “Fund” and collectively the “Funds”), and to provide certain other services
to the Trust, and the Advisor desires to be retained to provide such
services;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants hereinafter
contained, the Trust and the Advisor agree as follows:
1. The
Trust hereby retains the Advisor to act as investment advisor to the Funds and,
subject to the supervision of the Board of Trustees of the Trust (the “Board”),
to manage the investment activities of the Funds and to provide certain other
services to the Trust as hereinafter set forth. Without limiting the
generality of the foregoing, the Advisor shall: obtain and evaluate such
information and advice relating to the economy, securities markets, and
securities as it deems necessary or useful to discharge its duties hereunder;
continuously manage the assets of the Funds in a manner consistent with the
investment objective, policies and restrictions of the Funds and applicable laws
and regulations; determine the securities to be purchased, sold or otherwise
disposed of by the Funds and the timing of such purchases, sales and
dispositions; and take such further action, including the placing of purchase
and sale orders and the voting of securities on behalf of the Funds, as the
Advisor shall deem necessary or appropriate. The Advisor shall
furnish to or place at the disposal of the Trust such of the information,
evaluations, analyses and opinions formulated or obtained by the Advisor in the
discharge of its duties as the Trust may, from time to time, reasonably
request.
2. The
Advisor shall assist in the selection of and the negotiation of agreements with,
and monitor the quality of services provided by, the Trust’s administrator,
custodian, transfer agent, and other organizations that provide services to the
Trust (but the Trust shall pay the fees and expenses of the administrator,
custodian and transfer agent and such other organizations and the Advisor shall
not be responsible for the acts or omissions of such service
providers). The Advisor shall also provide such additional management
and administrative services as may reasonably be required in connection with the
business affairs and operations of the Trust beyond those furnished by the
Trust’s administrator.
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3. The
Advisor shall, at its own expense, maintain such staff and employ or retain such
personnel and consult with such other persons as may be necessary to render the
services required to be provided by the Advisor or furnished to the Trust under
this Agreement. Without limiting the generality of the foregoing, the
staff and personnel of the Advisor shall be deemed to include persons employed
or otherwise retained by the Advisor to furnish statistical and other factual
data, advice regarding economic factors and trends, information with respect to
technical and scientific developments, and such other information, advice and
assistance as the Advisor may desire.
4. The
Advisor shall, at its own expense, create and maintain a website on behalf of
the Trust, which website will be the property of the Advisor.
5. The
Trust will, from time to time, furnish or otherwise make available to the
Advisor such financial reports, proxy statements, policies and procedures and
other information relating to the business and affairs of the Funds and the
Trust as the Advisor may reasonably require in order to discharge its duties and
obligations hereunder.
6. The
Advisor shall bear the cost of rendering the services to be performed or
furnished by it under this Agreement, and shall provide the Trust with such
office space, facilities, equipment, clerical help, and other personnel and
services as the Trust shall reasonably require in the conduct of its
business. The Advisor shall also bear the cost of telephone service,
heat, light, power and other utilities provided to the Trust. The
salaries of officers of the Trust, and the fees and expenses of Trustees of the
Trust, who are also directors, officers or employees of the Advisor, or who are
officers or employees of any company affiliated with the Advisor, shall be paid
and borne by the Advisor or such affiliated company.
7. The
Trust assumes and shall pay or cause to be paid all expenses of the Trust not
expressly assumed by the Advisor under this Agreement, including without
limitation: any payments pursuant to any plan of distribution adopted by the
Trust; the fees, charges and expenses of any registrar, custodian, accounting
agent, administrator, stock transfer and dividend disbursing agent; brokerage
commissions; taxes; registration costs of the Trust and its shares under federal
and state securities laws; the costs and expenses of engraving and printing
stock certificates; the costs and expenses of preparing, printing, including
typesetting, and distributing prospectuses and statements of additional
information of the Trust and the Funds and supplements thereto to the Trust’s
shareholders; all expenses of shareholders’ and Trustees’ meetings and of
preparing, printing and mailing proxy statements and reports to shareholders;
fees and travel expenses of Trustees and members of any advisory board or
committee who are not also officers, directors or employees of the Advisor or
who are not officers or employees of any company affiliated with the Advisor;
all expenses incident to any dividend, withdrawal or redemption options; charges
and expenses of any outside service used for pricing of the Funds’ shares; fees
and expenses of legal counsel to the Trust and its Trustees; fees and expenses
of the Trust’s independent accountants; membership dues of industry
associations; interest payable on borrowings; postage; insurance premiums on
property or personnel (including officers and Trustees) of the Trust which inure
to its benefit; and extraordinary expenses (including but not limited to, legal
claims and liabilities and litigation costs and any indemnification related
thereto).
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8. As
full compensation for the services and facilities furnished to the Funds and the
Trust and the expenses assumed by the Advisor under this Agreement, the Trust
shall pay to the Advisor a fee determined in accordance with Schedule B
hereto. This fee shall be paid monthly, in arrears, promptly after
the end of the month. Subject to the provisions of paragraph 9 hereof, payment
of the Advisor’s compensation for the preceding month shall be made as promptly
as possible after completion of the necessary computations.
9. In
the event the operating expenses of a Fund, including amounts payable to the
Advisor pursuant to paragraph 8 hereof, for any fiscal year ending on a date on
which this Agreement is in effect, exceed any expense limitation applicable to
the Fund under any state securities laws or regulations (as such limitations may
be raised or lowered or waived upon application of the Trust or the Advisor from
time to time) and which are not pre-empted by federal law, the Advisor shall
reduce its fee to the extent of such excess and, if required pursuant to any
such laws or regulations, will reimburse the Trust for annual operating expenses
of the Fund in excess of such expense limitation; provided, however, that there
shall be excluded from expenses the amount of any interest, taxes, brokerage
commissions, distribution fees and extraordinary expenses (including but not
limited to legal claims and liabilities and litigation costs and any
indemnification relating thereto) paid or payable by the Fund to the extent
permissible under applicable laws and regulations. The amount of any
such reduction in fee or reimbursement of expenses shall be calculated and
accrued daily and settled on a monthly basis, based upon the expense limitation
applicable to the Fund as at the end of the last business day of the
month. Should two or more such expense limitations be applicable as
at the end of the last business day of the month, that expense limitation which
results in the largest reduction in the Advisor’s fee shall be
applicable.
For
purposes of this provision, should any applicable expense limitation be based
upon the gross income of a Fund, such gross income shall include, but not be
limited to, interest on debt securities held by the Fund accrued to and
including the last day of the Fund’s fiscal year, and dividends declared on
equity securities held by the Fund, the record dates for which fall on or prior
to the last day of such fiscal year, but shall not include gains from the sale
of securities.
10. The
Advisor will use its best efforts in the supervision and management of the
investment activities of the Trust and in providing services hereunder, but in
the absence of willful misfeasance, bad faith, gross negligence or reckless
disregard of its obligations hereunder, the Advisor, its members, officers and
employees and their respective affiliates, executors, heirs, assigns, successors
and other legal representatives and members, officers and employees of
affiliates of the Advisor (the “Affiliates”) shall not be liable to the Trust or
the Funds for any error of judgment or any mistake of law or for any act or
omission by the Advisor or by any of the Affiliates.
11. Nothing
contained in this Agreement shall prevent the Advisor or any affiliated person
of the Advisor from acting as investment advisor or investment manager for any
other person, firm, corporation or account nor in any way bind or restrict the
Advisor or any such affiliated person from buying, selling or trading any
securities or commodities for their own accounts or for the account of others
for whom they may be acting. Nothing in this Agreement shall limit or
restrict the right of any director, officer or employee of the Advisor 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 or
dissimilar nature.
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12. The
Trust acknowledges and agrees, in accordance with the provisions of Article
VIII, Section 9 of the Trust’s Declaration of Trust effective as of December 1,
2009 (the “Declaration of Trust”), that the name “Alerian,” the Alerian logo and
all rights to the use of such name or logo (or any derivatives of such name or
logo) as part of the names of the Trust and the Funds or otherwise belong to GKD
Index Partners, LLC (“GKD”). The Advisor, with the authorization of
GKD, hereby consents to the use by the Trust of such name and logo and has
granted to the Trust a non-exclusive license to use such name (and the name
“Alerian”) as part of the name of the Trust and the names of the
Funds. In the event an affiliate of GKD ceases to serve as the
investment advisor of the Trust or the Funds, this non-exclusive license granted
herein may be revoked in whole or in part by the Advisor or by GKD, and the
Trust shall promptly cease using the name “Alerian” (and the name “Alerian”) as
part of its name and the names of the Funds and cease use of Alerian logo,
unless otherwise consented to by GKD or any successor to its interest in such
name.
13. This
Agreement shall remain in effect for an initial term expiring two years after
the date of its execution, and shall continue in effect from year to year
thereafter provided such continuance is approved at least annually by the vote
of a majority of the outstanding voting securities of the Funds, as defined by
the 1940 Act and the rules thereunder, or by the Board; provided that in either
event such continuance is also approved by a majority of the Trustees of the
Trust who are not parties to this Agreement or “interested persons” (as defined
by the 0000 Xxx) of any such party (the “Independent Trustees”), by vote cast in
person at a meeting called for the purpose of voting on such approval; and
provided, however, that: (a) the Trust may at any time, without payment of any
penalty, terminate this Agreement upon sixty days’ written notice to the
Advisor, either by majority vote of the Trustees of the Trust or by the vote of
a majority of the outstanding voting securities of the Trust (as defined by the
1940 Act and the rules thereunder); (b) this Agreement shall immediately
terminate in the event of its assignment (to the extent required by the 1940 Act
and the rules thereunder) unless such automatic termination shall be prevented
by an exemptive order of the Securities and Exchange Commission; and (c) the
Advisor may terminate this Agreement without payment of penalty on sixty days’
written notice to the Trust.
14. Any
notice under this Agreement shall be given in writing and shall be deemed to
have been duly given when delivered by hand or facsimile or five days after
mailed by certified mail, post-paid, by return receipt requested to the other
party at the principal office of such party.
15. This
Agreement may be amended only by the written agreement of the
parties. Any amendment shall be required to be approved by the Board
and by a majority of the Independent Trustees in accordance with the provisions
of Section 15(c) of the 1940 Act and the rules thereunder. Any
amendment shall also be required to be approved by a vote of shareholders of the
Trust as, and to the extent, required by the 1940 Act and the rules
thereunder. This Agreement may be amended to make it applicable to
one or more additional investment portfolios of the Trust which may hereafter be
formed and such amendment need not be approved by the vote of the holders of
shares of the Funds or of any other unaffected portfolio.
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16. This
Agreement shall be construed in accordance with the laws of the state of
Delaware and the applicable provisions of the 1940 Act. To the extent
the applicable law of the State of Delaware, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control.
17. The
Trust represents that this Agreement has been duly approved by the Board,
including a majority of the Independent Trustees, and by shareholders of the
Trust in accordance with the requirements of the 1940 Act and the rules
thereunder.
18. The
Declaration of Trust states and notice is hereby given that this Agreement is
not executed on behalf of the Trustees of the Trust as individuals, and that the
obligations of the Trust under this Agreement are not binding upon any of the
Trustees, officers or shareholders of the Trust individually, but are binding
only upon the assets and property of the Trust.
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the day and year first written above.
By:
Xxxxxxx Xxxxxxx
President
ALERIAN
FUND ADVISORS
By:
Name:
Title:
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SCHEDULE
A
to
the
FORM
OF INVESTMENT ADVISORY AGREEMENT
Name of
Funds
Alerian
MLP Select 40 Fund
Alerian
Alpha Fund
Alerian
MLP Income Fund
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SCHEDULE
B
to
the
FORM
OF INVESTMENT ADVISORY AGREEMENT
In
consideration of the services provided by the Advisor, the Trust shall pay to
the Advisor compensation computed at the annual rate of 0.70% of the Funds’ net
assets (the “Basic Fee Rate”). 1/12th of the Basic Fee Rate
multiplied by the average daily net assets of the Funds during such month shall
be paid by the Trust monthly in arrears. In the event this Agreement is
effective for only a portion of any calendar month, the Total Advisory Fee
payable for such month shall be pro rated based upon the number of days during
the month that this Agreement was effective.
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