PORTFOLIO MANAGEMENT AGREEMENT
For The Real Estate Securities Portfolio
AGREEMENT made this 23rd day of September, 2011, between SSgA Funds
Management, Inc., a corporation organized under the laws of
Massachusetts ("Portfolio Manager"), and The HC Capital Trust, a
Delaware statutory trust ("Trust").
WHEREAS, the Trust is registered as an open-end, diversified,
management investment company under the
Investment Company Act of 1940, as amended ("Investment Company
Act") which offers several series of shares
of beneficial interests ("shares") representing interests in
separate investment portfolios; and
WHEREAS, the Trust desires to retain the Portfolio Manager to
provide a continuous program of investment management to that
portion of the assets of The Real Estate Securities Portfolio of
the Trust ("Portfolio") that may,from time to time be allocated to
it by, or under the supervision of, the Trust's Board of Trustees,
and Portfolio Manager is willing, in accordance with the terms and
conditions hereof, to provide such services to the Trust;
NOW THEREFORE, in consideration of the promises and covenants set
forth herein and intending to be legally bound hereby, it is agreed
between the parties as follows:
1. Appointment of Portfolio Manager. The Trust hereby retains
Portfolio Manager to provide the investment services set forth herein
and Portfolio Manager agrees to accept such appointment. In carrying
out its responsibilities under this Agreement, the Portfolio Manager
shall at all times act in accordance with the investment objectives,
policies and restrictions applicable to the Portfolio as set forth in
the then current Registration Statement of the Trust delivered by
the Trust to the Portfolio Manager, applicable provisions of the
Investment Company Act and the rules and regulations promulgated
under the Investment Company Act and other applicable federal
securities laws.
2. Duties of Portfolio Manager. (a) Portfolio Manager shall provide a
continuous program of investment management for that portion of the
assets of the Portfolio ("Account") that may, from time to time be
allocated to it by, or under the supervision of, the Trust's Board
of Trustees, as indicated in writing by an authorized officer of the
Trust. It is understood that the Account may consist of all, a
portion of or none of the assets of the Portfolio, and that the
Board of Trustees and/or Xxxxxx Xxxxxxxxx & Co., LLC ("Xxxxxx
Xxxxxxxxx"), the Trust's investment adviser, has the right to
allocate and reallocate such assets to the Account at any time, and
from time to time, upon such notice to the Portfolio Manager as may
be reasonably necessary, in the view of the Trust, to ensure orderly
management of the Account or the Portfolio. The Portfolio Manager's
responsibility for providing portfolio management services to the
Portfolio shall be limited to the Account;
(b) Subject to the general supervision of the Trust's Board of
Trustees and the direction of Xxxxxx Xxxxxxxxx, Portfolio Manager
shall have sole investment discretion with respect to the Account,
including investment research, selection of the securities to be
purchased and sold and the portion of the Account, if any, that
shall be held uninvested, and the selection of brokers and dealers,
including affiliated brokers and dealers of Portfolio Manager,
through which securities transactions in the Account shall be
executed. The Portfolio Manager shall not consult with any other
portfolio manager of the Portfolio concerning transactions for the
Portfolio in securities or other assets. Specifically, and without
limiting the generality of the foregoing, Portfolio Manager agrees
that it will:
(i) advise the Portfolio's designated custodian bank and
administrator or accounting agent on each business
day of each purchase and sale, as the case may be, made on behalf
of the Account, specifying the name and quantity of the security
purchased or sold, the unit and aggregate purchase or sale price,
commission paid, the market on which the transaction was effected,
the trade date, the settlement date, the identity of the effecting
broker or dealer and/or such other information, and in such manner,
as may from time to time be reasonably requested by the Trust;
(ii) maintain all applicable books and records with respect to
the securities transactions of the Account. Specifically,
Portfolio Manager agrees to maintain with respect to the Account
those records required to be maintained under Rule 31 a-I (b)(1),
(b)( 5) and (b)( 6) under the Investment Company Act with respect
to transactions in the Account including, without limitation,
records which reflect securities purchased or sold in the Account,
showing for each such transaction, the name and quantity of
securities, the unit and aggregate purchase or sale price,
commission paid, the market on which the transaction was effected,
the trade date, the settlement date, and the identity of the
effecting broker or dealer. Portfolio Manager will preserve such
records in the manner and for the periods prescribed by Rule
31 a-2 under the Investment Company Act. Portfolio Manager
acknowledges and agrees that all records it maintains for the
Trust are the property of the Trust, and Portfolio Manager will
surrender promptly to the Trust any such records upon the Trust's
request. The Trust agrees, however, that Portfolio Manager may
retain copies of those records that are required to be
maintained by Portfolio Manager under federal or state
regulations to which it may be subject or are reasonably
necessary for purposes of conducting its business;
(iii) provide, in a timely manner, such information as may be
reasonably requested by the Trust or its designated agents in
connection with, among other things, the Trust's daily
computation of the Portfolio's net asset value and net income,
preparation of proxy statements or amendments to the Trust's
registration statement. In the performance of its duties and
obligations under this Agreement, the Portfolio Manager will
use its best efforts to assist Xxxxxx Xxxxxxxxx in ensuring
continued qualification for the special tax treatment accorded
to regulated investment companies under Subchapter M of the
Internal Revenue Code of 1986, as amended ("Code").
Notwithstanding the foregoing, each of Xxxxxx Xxxxxxxxx,
the Trust and the Portfolio Manager expressly acknowledge
and agree that Portfolio Manager has no responsibility for
monitoring for, or ensuring compliance with, Section 851(b)(2)
of the Code; and
(iv) render regular reports to the Trust concerning the
performance of Portfolio Manager of its responsibilities under
this Agreement. In particular, Portfolio Manager agrees that
it will, at the reasonable request of the Board of Trustees,
attend meetings of the Board or its validly constituted
committees and will, in addition, make its officers and
employees available to meet with the officers and employees
of the Trust at least quarterly and at other times upon
reasonable notice, to review the investments and investment
program of the Account.
3. Portfolio Transaction and Brokerage. In placing orders
for portfolio securities with brokers and dealers, Portfolio
Manager shall use its best efforts to execute securities
transactions on behalf of the Account in such a manner that
the total cost or proceeds in each transaction is the most
favorable under the circumstances. Portfolio Manager may,
however, in its discretion, direct orders to brokers that
provide to Portfolio Manager research, analysis, advice and
similar services, and Portfolio Manager may cause the Account
to pay to those brokers a higher commission than may be charged
by other brokers for similar transactions, provided that
Portfolio Manager determines in good faith that such commission
is reasonable in terms either of the particular transaction or
of the overall responsibility of the Portfolio Manager to the
Account and any other accounts with respect to which Portfolio
Manager exercises investment discretion, and provided further
that the extent and continuation of any such practice is subject
to review by the Trust's Board of Trustees.
On occasions when the Portfolio Manager deems the purchase or
sale of a security to be in the best interest of the Fund as
well as other clients of the Portfolio Manager, the Portfolio
Manager, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to,
aggregate the securities to be purchased or sold to attempt
to obtain a more favorable price or lower brokerage commissions
and efficient execution.
Portfolio Manager shall not execute any portfolio transactions
for the Trust with a broker or dealer which is an "affiliated
person" of the Trust or Portfolio Manager, including any other
investment advisory organization that may, from time to time
act as a portfolio manager for the Portfolio or any of the
Trust's other Portfolios, except as permitted under the
Investment Company Act and rules promulgated thereunder.
The Trust shall provide a list of such affiliated brokers and
dealers to Portfolio Manager and will promptly advise Portfolio
Manager of any changes in such list.
4. Expenses and Compensation. Except for expenses
specifically assumed or agreed to be paid by the
Portfolio Manager under this Agreement, the Portfolio Manager
shall not be liable for any expenses of the Portfolio or the
Trust, including, without limitation: (i) interest and taxes;
(ii) brokerage commissions and other costs in connection with
the purchase and sale of securities or other investment
instruments with respect to the Portfolio; and (iii) custodian
fees and expenses. For its services under this Agreement,
Portfolio Manager shall be entitled to receive a fee at the
annual rate of 0.12% of the average daily net assets of the
Account. The fee shall be payable monthly in arrears.
5. Limitation of Liability and Indemnification. (a) Neither
the Portfolio Manager nor any person that is an "affiliated
person" of the Portfolio Manager or any of its affiliated
companies (collectively, "Associated Persons") shall be
liable for any error of judgment or mistake of law or for any
loss suffered by the Portfolio or the Trust in connection
with the matters to which this Agreement relates including,
without limitation, losses that may be sustained in connection
with the purchase, holding, redemption or sale of any
security or other investment by the Trust on behalf of the
Portfolio, except a loss resulting from willful misfeasance,
bad faith or gross negligence on the part of Portfolio Manager
in the performance of its duties or from reckless disregard by
it of its duties under this Agreement. In no event shall the
Portfolio Manager or its Associated Persons have any liability
arising from the conduct of any other portfolio manager with
respect to the portion of the Portfolio's assets not allocated
to the Portfolio Manger. The parties agree that any stated
limitations on liability shall not relieve the Portfolio
Manager from any responsibility or liability under state of
federal statutes.
(b) Notwithstanding the foregoing, Portfolio Manager expressly
agrees that the Trust may rely upon: (i) the Portfolio
Manager's current Form ADV; and (ii) information provided,
in writing, by Portfolio Manager to the Trust in accordance
with Section 9 of this Agreement or otherwise to the extent
such information was provided by Portfolio Manager for the
purpose of inclusion in the Trust's registration statement and
amendments thereto and certain periodic reports relating to the
Trust and its Portfolios that are required to be furnished to
shareholders of the Trust and/or filed with the Securities and
Exchange Commission ("SEC Filings"), as hereinafter defined
provided that a copy of each SEC Filing is provided to Portfolio
Manager: (i) at least 10 business days prior to the date on which
it will become effective, in the case of a registration statement;
(ii) at least 10 business days prior to the date upon which it is
filed with the SEC in the case of the Trust's semi-annual-report
on Form N-SAR or any shareholder report or proxy statement; or
(iii) at least 10 business days prior to first use, in the case
of any other SEC Filing. For purposes of this Section 5, "SEC
Filings" means the Trust's registration statement and amendments
thereto and any periodic reports relating to the Trust and its
Portfolios that are required by law to be furnished to
shareholders of the Trust and/or filed with the Securities and
Exchange Commission.
(c) Portfolio Manager agrees to indemnify and hold harmless the
Trust and each of its Trustees, officers, employees and control
persons from any claims, liabilities and reasonable expenses,
including reasonable attorneys' fees (collectively, "Losses"),
to the extent that such Losses arise out of any untrue statement
of a material fact contained in an SEC Filing or the omission to
state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they are made,
not materially misleading, if such statement or omission was made
in reliance upon the Portfolio Manager's current Form ADV or
written information furnished by the Portfolio Manager
for the purpose of inclusion in such SEC Filings or other
appropriate SEC Filings; provided that a copy of each SEC
Filing was provided to Portfolio Manager: (i) at least 10
business days prior to the date on which it will become effective,
in the case of a registration statement; (ii) at least 10 business
days prior to the date upon which it is filed with the SEC in the
case of the Trust's semi-annual-report on Form N-SAR or any
shareholder report or proxy statement; or (iii) at least 10
business days prior to first use, in the case of any other SEC
Filing.
(d) The Trust agrees to indemnify and hold harmless the Portfolio
Manager and its Associated Persons from any claims, liabilities
and expenses, including reasonable attorneys' fees, incurred as
a result of any untrue statement of a material fact which relates
to information in any SEC filing, or any omission to state a
material fact in any SEC filing in any case where the statement
or material omission was not based on written information supplied
by electronic transmission or in writing to Trust, or its
administrator, transfer agent, custodian, distributor or to Xxxxxx
Xxxxxxxxx & Co., LLC, the Trust's investment manager, by the
Portfolio Manager.
(e) In the event that a legal proceeding is commenced against
the Trust on the basis of claims for which the Portfolio
Manager would, if such claims were to prevail, be required to
indemnify the Trust pursuant to Section 5( c) above,
Portfolio Manager will, at its expense, provide such assistance
as the Trust may reasonably request in preparing the defense of
such claims (including by way of example making Portfolio
Manager's personnel available for interview by counsel for the
Trust, but specifically not including retention or payment of
counsel to defend such claims on behalf of the Trust); provided
that the Portfolio Manager will not be required to pay any Losses
of the Trust except to the extent it may be required to do so under
Section 5( c) above.
(f) The indemnification obligations set forth in Section 5 (c)
shall not apply unless: (i) the statement or omission in question
accurately reflects information provided to the Trust in writing by
the Portfolio Manager; (ii) the statement or omission in question
was made in an SEC Filing in reliance upon written information
provided to the Trust by the Portfolio Manager specifically for
use in such SEC Filing or was contained in Portfolio Manager's Form
ADV; (iii) the Portfolio Manager was afforded the opportunity to
review the statement (or the omission was identified to it) in
connection with the 10 business day review requirement set forth
in Section 5(b) above; and (iv) upon receipt by the Trust of any
notice of the commencement of any action or the assertion of any
claim to which the indemnification obligations set forth in Section
5(c) may apply, the Trust notifies the Portfolio Manager, within 30
days and in writing, of such receipt and provides to Portfolio
Manager the opportunity to participate in the defense and/or
settlement of any such action or claim. Further, Portfolio
Manager will not be required to indemnify any person under this
Section 5 to the extent that Portfolio Manager relied upon
statements or information furnished to the Portfolio Manager, in
writing, by any officer, employee or Trustee of the Trust, or by
the Trust's custodian, administrator or accounting agent or any
other agent of the Trust, in preparing written information provided
to the Trust and upon which the Trust relied in preparing the SEC
Filing(s) in question.
(g) The Portfolio Manager shall not be liable for: (i) any acts of
any other portfolio manager to the Portfolio or the Trust with
respect to the portion of the assets of the Portfolio or the
Trust not managed by the Portfolio Manager; and (ii) acts of the
Portfolio Manager which result from acts of the Trust, including,
but not limited to, a failure of the Trust to provide accurate and
current information with respect to the investment objectives,
policies, or restrictions applicable to the Portfolio, actions of
the Trustees, or any records maintained by Trust or any other
portfolio manager to the Portfolio. The Trust agrees that, to the
extent the Portfolio Manager complies with the investment objectives,
policies, and restrictions applicable to the Portfolio as provided
to the Portfolio Manager by the Trust, and with laws, rules, and
regulations applicable to the Portfolio in the management of the
assets of the Portfolio specifically committed to management by the
Portfolio Manager, without regard to any other assets or investments
of the Portfolio, Portfolio Manager will be conclusively presumed for
all purposes to have met its obligations under this Agreement to act
in accordance with the investment objectives, polices, and
restrictions applicable to the Portfolio and with laws, rules, and
regulations applicable to the Portfolio, it being the intention that
for this purpose the assets committed to management by the Portfolio
Manager shall be considered a separate and discrete investment
portfolio from any other assets of the Portfolio; without limiting
the generality of the foregoing, the Portfolio Manager will have no
obligation to inquire into, or to take into account, any other
investments of the Portfolio in making investment decisions under
this Agreement. In no event shall the Portfolio Manager or any
officer, director, employee, or agent or the Portfolio Manager have
any liability arising from the conduct of the Trust and any other
portfolio manager with respect to the portion of the Portfolio's
assets not allocated to the Portfolio Manager.
6. Permissible Interest. Subject to and in accordance with the
Trust's Declaration of Trust and Bylaws and corresponding governing
documents of Portfolio Manager, Trustees, officers, agents and
shareholders of the Trust may have an interest in the Portfolio
Manager as officers, directors, agents and/or shareholders or
otherwise. Portfolio Manager may have similar interests in the Trust.
The effect of any such interrelationships shall be governed by said
governing documents and the provisions of the Investment Company Act.
7. Duration, Termination and Amendments. This Agreement shall become
effective as of the date first written above and shall continue in
effect thereafter for two years. This Agreement shall continue in
effect from year to year thereafter for so long as its continuance
is specifically approved, at least annually, by: (i) a majority of
the Board of Trustees or the vote of the holders of a majority of
the Portfolio's outstanding voting securities; and (ii) the
affirmative vote, cast in person at a meeting called for the
purpose of voting on such continuance, of a majority of those
members of the Board of Trustees ("Independent Trustees") who
are not "interested persons" of the Trust or any investment
adviser to the Trust.
This Agreement may be terminated by the Trust or by Portfolio
Manager at any time and without penalty upon sixty days written
notice to the other party, which notice may be waived by the party
entitled to it. This Agreement may not be amended except by an
instrument in writing and signed by the party to be bound thereby
provided that if the Investment Company Act requires that such
amendment be approved by the vote of the Board, the Independent
Trustees and/or the holders of the Trust's or the Portfolio's
outstanding shareholders, such approval must be obtained
before any such amendment may become effective. This Agreement
shall terminate upon its assignment. For purposes of this Agreement,
the terms "majority of the outstanding voting securities,"
"assignment" and "interested person" shall have the meanings set
forth in the Investment Company Act.
8. Confidentiality; Use of Name. Portfolio Manager and the Trust
acknowledge and agree that during the term of this Agreement the
parties may have access to certain information that is proprietary
to the Trust or Portfolio Manager, respectively (or to their
affiliates and/or service providers). The parties agree that
their respective officers and employees shall treat all such
proprietary information as confidential and will not use or
disclose information contained in, or derived from such material
for any purpose other than in connection with the carrying out
of their responsibilities under this Agreement and the management
of the Trust's assets, provided, however, that this shall not
apply in the case of: (i) information that is publicly available;
and (ii) disclosures required by law or requested by any
regulatory authority that may have jurisdiction over Portfolio
Manager or the Trust, as the case may be, in which case such
party shall request such confidential treatment of such
information as may be reasonably available. In addition, each
party shall use its reasonable efforts to ensure that its agents
or affiliates who may gain access to such proprietary information
shall be made aware of the proprietary nature and shall likewise
treat such materials as confidential.
It is acknowledged and agreed that the names "Xxxxxx Xxxxxxxxx,"
"Xxxxxx Xxxxxxxxx Chief Investment Officers" (which is a
registered trademark of Xxxxxx Xxxxxxxxx & Co., LLC ("HCC",
"HC Capital" and any derivative of any of them, as well as any
logo that is now or shall later become associated with such names
("Marks") are valuable property ofHCC and that the use of the Marks,
or anyone of them, by the Trust or its agents is subject to the
license granted to the Trust by HCC. Portfolio Manager agrees that
it will not use any Xxxx without the prior written consent of the
Trust. Portfolio Manager consents to use of its name, performance
data, biographical data and other pertinent data, and the SSgA Marks
(as defmed below), by the Trust for use in marketing and sales
literature, provided that any such marketing and sales literature
shall not be used by the Trust without the prior written consent
of Portfolio Manager, which consent shall not be umeasonably
withheld. The Trust shall have full responsibility for the
compliance by any such marketing and sales literature with all
applicable laws, rules, and regulations, and Portfolio Manager
will have no responsibility or liability therefor.
It is acknowledged and agreed that the name "State Street Global
Advisors," "SSgA," "SSgA Funds Management, Inc." and any portion
or derivative thereof, as well as any logo that is now or shall
later become associated with the name ("SSgA Marks"), are valuable
property of the Portfolio Manager and that the Trust and its
authorized agents may use the SSgA Marks as necessary in SEC Filings
so long as this Agreement is in place. The Trust is not
permitted to use the SSgA Marks for any other purpose (including,
without limitation, marketing the shares of the Trust) without the
written consent of the Portfolio Manager, which shall not be
umeasonably withheld. Upon termination of this Agreement, the
Trust shall forthwith cease to use the SSgA Marks. The Trust
acknowledges that unauthorized use of the SSgA Marks shall result
in irreparable harm to the Portfolio Manager for which monetary
damages are inadequate, and thus, the Portfolio Manager shall be
entitled to injunctive relief.
The provisions of this Section 8 shall survive termination of
this Agreement.
9. Representation, Warranties and Agreements of Portfolio Manager.
Portfolio Manager represents and warrants that:
(a) It is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended, ("Investment Advisers Act"),
it will maintain such registration in full force and effect and
will promptly report to the Trust the commencement of any formal
proceeding that could render the Portfolio Manager ineligible to
serve as an investment adviser to a registered investment company
under Section 9 of the Investment Company Act;
(b) Portfolio Manager understands that the Trust is subject to
various regulations under the Investment Company Act which require
that the Board review and approve various procedures adopted by
portfolio managers and may also require disclosure regarding the
Board's consideration of these matters in various documents required
to be filed with the SEC. Portfolio Manager represents that it will,
upon reasonable request of the Trust, provide to the Trust
information regarding all such matters including, but not limited to,
codes of ethics required by Rule 17j-1 under the Investment Company
Act and compliance procedures required by Rule 206(4)-7 under
the Investment Advisers Act, as well as certifications that, as
contemplated under Rule 38a-1 under the Investment Company Act,
Portfolio Manager has implemented a compliance program that is
reasonably designed to prevent violations of the federal securities
laws by the Portfolio with respect to those services provided pursuant
to this Agreement. Portfolio Manager acknowledges that the Trust may,
in response to regulations or recommendations issued by the SEC or
other regulatory agencies, from time to time, request additional
information regarding the personal securities trading of its
directors, partners, officers and employees and the policies of
Portfolio Manager with regard to such trading. Portfolio Manager
agrees that it will make reasonable efforts to respond to the Trust's
reasonable requests in this area; and
(c) Upon request of the Trust, Portfolio Manager shall promptly
supply the Trust with any information concerning the Portfolio
Manager and its stockholders, employees and affiliates that the
Trust may reasonably require in connection with the preparation
of its registration statements, proxy materials, reports and other
documents required, under applicable state or Federal laws, to be
filed with state or Federal agencies and/or provided to
shareholders of the Trust.
10. Status of Portfolio Manager. The Trust and Portfolio Manager
acknowledge and agree that the relationship between Portfolio
Manager and the Trust is that of an independent contractor and
under no circumstances shall any employee of Portfolio Manager
be deemed an employee of the Trust or any other organization that
the Trust may, from time to time, engage to provide services to
the Trust, its Portfolios or its shareholders. The parties also
acknowledge and agree that nothing in this Agreement shall be
construed to restrict the right of Portfolio Manager or
its affiliates to perform investment management or other services
to any person or entity, including without limitation, other
investment companies and persons who may retain Portfolio Manager
to provide investment management services and the performance of
such services shall not be deemed to violate or give rise to any
duty or obligations to the Trust.
11. Counterparts and Notice. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an
original. Any notice required to be given under this Agreement
shall be deemed given when received, in writing addressed and
delivered, by certified mail, by hand or via overnight delivery
service as follows:
If to the Trust:
Xxxxxx X. Xxxx
The HC Capital Trust
Five Tower Bridge, 300 Xxxx Harbor Drive, Suite 500
West Conshohocken, P A 19428
If to Portfolio Manager:
SSgA Funds Management, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Chief Compliance Officer
12. Miscellaneous. The captions in this Agreement are included
for convenience of reference only and in no way defme or delimit
any of the provisions hereof or otherwise affect their construction
or effect. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and shall be governed by the law of
the State of Delaware provided that nothing herein shall be construed
as inconsistent with the Investment Company Act or the Investment
Advisers Act.
The Trust acknowledges receipt of Part II of Portfolio Manager's
Form ADV, copies of which have been provided to the Trust's Board
of Trustees.
Portfolio Manager is hereby expressly put on notice of the
limitations of shareholder and Trustee liability 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 assets of the Portfolio. Portfolio Manager
further agrees that it will not seek satisfaction of any such
obligations from the shareholders or any individual shareholder
of the Trust, or from the Trustees of the Trust or any individual
Trustee of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their officers thereunto duly authorized as of
the day and year fIrst written above.
SSgA Funds Management, Inc.
HC Capital Trust
