INVESTMENT ADVISORY
AGREEMENT
BETWEEN
SPRING CREEK CAPITAL CORP.
AND
CARLTON WEALTH MANAGEMENT, LLC
Agreement made this 1st day of
June, 2009, by and between Spring Creek Capital Corp.
, a Nevada corporation (the “Corporation”
), and Carlton Wealth Management, LLC, a New York
limited liability company (the “Adviser”
).
Whereas , the Corporation is a
closed-end management investment company that has elected to be
treated as a business development company under the Investment
Company Act of 1940 (the “Investment Company
Act” ); and
Whereas , the Adviser is an
investment adviser that has registered under the Investment
Advisers Act of 1940 (the “Advisers Act”
); and
Whereas , the Corporation
desires to retain the Adviser to furnish investment advisory
services to the Corporation on the terms and conditions hereinafter
set forth, and the Adviser wishes to be retained to provide such
services.
Now, Therefore, in
consideration of the premises and for other good and valuable
consideration, the parties hereby agree as follows:
1.
Duties of the
Adviser .
(a) The Corporation
hereby employs the Adviser to act as the investment adviser to the
Corporation and to advise on the investment and reinvestment of the
assets of the Corporation, subject to the supervision of the Board
of Directors of the Corporation, for the period and upon the terms
herein set forth, (i) in accordance with the investment
objective, policies and restrictions established by the Board of
the Corporation and its Investment Committee, as the same shall be
amended from time to time (as amended, the “Investment
Policies” ), (ii) in accordance with the
Investment Company Act and (iii) during the term of this
Agreement in accordance with all other applicable federal and state
laws, rules and regulations, and the Corporation’s charter
and by-laws. Without limiting the generality of the foregoing, the
Adviser shall, during the term and subject to the provisions of
this Agreement, (i) advise on the composition of the portfolio
of the Corporation, the nature and timing of the changes therein
and the manner of implementing such changes; (ii) identify,
evaluate and help negotiate the structure of the investments made
by the Corporation; (iii) advise on and monitor the
Corporation’s investments; (iv) provide advice to determine
the securities and other assets that the Corporation will purchase,
retain, or sell; (v) perform due diligence on prospective portfolio
companies; (vi) advise and assist in the quarterly and annual
valuation of portfolio company investments; and (vii) provide
the Corporation with such other investment advisory, research and
related services as the Corporation may, from time to time,
reasonably require for the investment of its funds. In the event
that the Corporation determines to acquire debt financing, the
Adviser will arrange for such financing on the Corporation’s
behalf, subject to the oversight and approval of the
Corporation’s Board of Directors.
(b) The Adviser
hereby accepts such employment and agrees during the term hereof to
render the services described herein for the compensation provided
herein.
(c) Subject to the
requirements of the Investment Company Act, the Adviser is hereby
authorized to enter into one or more sub-advisory agreements with
other investment advisers (each, a
“Sub-Adviser” ) pursuant to which the
Adviser may obtain the services of the Sub-Adviser(s) to assist the
Adviser in fulfilling its responsibilities hereunder. Specifically,
the Adviser may retain a Sub-Adviser to recommend specific
securities or other investments based upon the Corporation’s
investment objective and policies, and work, along with the
Adviser, in structuring, negotiating, arranging or effecting the
acquisition or disposition of such investments and monitoring
investments on behalf of the Corporation, subject to the oversight
of the Adviser and the Corporation. The Adviser, and not the
Corporation, shall be responsible for any compensation payable to
any Sub-Adviser. Any sub-advisory agreement entered into by the
Adviser shall be in accordance with the requirements of the
Investment Company Act and other applicable federal and state law
and shall contain a provision requiring the Sub-Adviser to comply
with sections 1(e) and 1(f) below as if it were the Adviser.
(d) The Adviser shall
for all purposes herein provided be deemed to be an independent
contractor and, except as expressly provided or authorized herein,
shall have no authority to act for or represent the Corporation in
any way or otherwise be deemed an agent of the Corporation.
(e) The Adviser shall
keep and preserve for the period required by the Investment Company
Act any books and records relevant to the provision of its
investment advisory services to the Corporation and shall render to
the Corporation’s Board of Directors such periodic and
special reports as the Board may reasonably request. The Adviser
agrees that all records that it maintains for the Corporation are
the property of the Corporation and will surrender promptly to the
Corporation any such records upon the Corporation’s request,
provided that the Adviser may retain a copy of such records.
(f) The Adviser has
adopted and implemented written policies and procedures reasonably
designed to prevent violation of the Federal Securities laws by the
Adviser. The Adviser has provided the Corporation, and shall
provide the Corporation at such times in the future as the
Corporation shall reasonably request, with a copy of such policies
and procedures and a report of such policies and procedures. Such
report shall be of sufficient scope and in sufficient detail, as
may reasonably be required to comply with Rule 38a-1 under the
Investment Company Act and to provide reasonable assurance that any
material inadequacies would be disclosed by such examination, and,
if there are no such inadequacies, the report shall so state.
2.
Corporation’s
Responsibilities and Expenses Payable by the Corporation
.
All investment professionals of the
Adviser and their respective staffs, when and to the extent engaged
in providing investment advisory and management services hereunder,
and the compensation and routine overhead expenses of such
personnel allocable to such services, will be provided and paid for
by the Adviser and not by the Corporation. The Corporation will
bear all other costs and expenses of its operations and
transactions, including (without limitation) those relating to:
organization and offering; calculating the Corporation’s net
asset value (including the cost and expenses of any independent
valuation firm); expenses incurred by the Adviser with the prior
consent of the Corporation, payable to third parties, including
agents, consultants or other advisors (such as independent
valuation firms, accountants and legal counsel), in monitoring
financial and legal affairs for the Corporation and in monitoring
the Corporation’s investments and performing due diligence on
its prospective portfolio companies; interest payable on debt, if
any, incurred to finance the Corporation’s investments;
offerings of the Corporation’s common stock and other
securities; investment advisory and management fees; administration
fees, if any, fees payable to third parties, including agents,
consultants or other advisors, relating to, or associated with,
evaluating and making investments; transfer agent and custodial
fees; federal and state registration fees; all costs of
registration and listing the Corporation’s shares on any
securities exchange; federal, state a
