INTERIM INVESTMENT MANAGEMENT CONTRACT
Exhibit
EX-99.d.11
Contract
made as of March 31, 2005, between Hillview Investment Trust II, a Delaware
business trust (“Trust”) on behalf of 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 currently consists of three series -- Hillview Alpha Fund, Hillview
International Alpha Fund and the Fund; 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.
2. Duties
as Investment Manager.
(a) 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.
(b)
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
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.
(c) 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.
(d) The
Manager will furnish to the Fund, at its own expense and without remuneration
from or other cost to the Fund, the following:
(i) 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;
(ii) 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
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(iii) 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.
(e)
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.
(f) 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.
3. 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 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.
4. 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.
5. Expenses.
(a) 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.
(b) Expenses
incurred by the Trust, all or a portion of which may be allocable to the Fund
in
accordance with the Trust’s Agreement and Declaration of Trust, will include but
not be limited to the following: (i)
fees
payable to and expenses incurred on behalf of the Fund by the Manager 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 organizing the Fund; (iv)
expenses of preparing and filing reports and other documents with governmental
and regulatory agencies; (v) filing fees and
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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; (vi) costs incurred in connection with the
issuance, sale or repurchase of the Fund’s shares of beneficial interest; (vii)
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”);
(viii) all expenses incurred in connection with the Independent Trustees’
services, including travel expense; (ix) taxes (including any income or
franchise taxes) and governmental fees; (x) costs of any liability,
uncollectible items of deposit and other insurance and fidelity bonds; (xi)
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; (xii)
interest charges; (xiii) legal, accounting and auditing expenses, including
legal fees of special counsel for the Independent Trustees; (xiv) charges of
custodians, transfer agents, pricing agents and other agents; (xv) expenses
of
disbursing dividends and distributions; (xvi) expenses of setting in type,
printing and mailing reports, notices and proxy materials for existing
shareholders; (xvii) any extraordinary expenses (including fees and
disbursements of counsel, costs of actions, suits or proceedings to which the
Trust is a party and the expenses the Trust 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; (xviii) fees, voluntary assessments
and other expenses incurred in connection with membership in investment company
organizations; (xix) costs of mailing and tabulating proxies and costs of
meetings of shareholders, the Board and any committees thereof; (xx) the cost
of
investment company literature and other publications provided by the Trust
to
its Trustees and officers; and (xxi) costs of mailing, stationery and
communications equipment.
(c) 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.
(d) 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.
6. Compensation.
(a) All
compensation earned by the Manager under this Contract shall be held in an
interest-bearing escrow account with the custodian of the Fund’s assets or a
bank. If the majority of the Fund’s outstanding voting securities approve a new
investment management contract with the Manager by the end of the 150 day period
that this Contract is effective, the Manager will be paid the amount in the
escrow account (including interest earned). If a majority of the Fund’s
outstanding voting securities do not approve a new investment management
contract with the Manager, the Manager will be paid, out of the escrow account
the lesser of (i) Manager’s costs incurred in performing this Contract (plus
interest earned on that amount while in escrow) or (ii) the total amount in
the escrow account (plus interest earned).
(b)
Subject
to the provisions above, the
compensation of the Manager for its services provided
to the Fund under this Contract shall be 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.
(c) 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.
(d) 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.
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7. 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 hereunder 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”) 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.
8. Duration
and Termination.
(a) This
Contract shall become effective upon the date first above written, provided
that
this Contract has been approved by a vote of a majority of those Trustees of
the
Trust who are not parties of this Agreement or interested persons of any such
party cast in person at a meeting called for the purpose of voting such
approval.
(b) Unless
sooner terminated as provided herein, this Contract shall continue in effect
for
a period of 150 days after the day and year first above written.
(c) 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 ten 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. This Contract will
automatically terminate in the event of its assignment.
9. 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.
10. 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.
11. 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.
12. 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
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such
obligation from the shareholders or any individual shareholder of the Fund,
nor
from the Trustees or any individual Trustee of the Trust.
13. 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,” “assignment,” “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 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.
on
behalf
of
REMS
REAL
ESTATE VALUE-OPPORTUNITY FUND
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
and Trustee
HILLVIEW
CAPITAL ADVISORS, LLC
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CEO
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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:
March 31, 2005