AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT
AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT, effective as of July 3, 2017
by and between Xxxxxx Capital US LLC (the "Adviser") and Xxxxxx Diversified
Opportunities Fund (the "Fund") (the "Agreement").
WHEREAS, the Fund is a Delaware statutory Trust organized under an Agreement and
Declaration of Trust, dated March 3, 2015 (the "Declaration of Trust"), and is
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), as a closed-end management company;
WHEREAS, the Fund and the Adviser have entered into an Investment Advisory
Agreement dated September 11, 2015 (the "Advisory Agreement"), pursuant to which
the Adviser provides investment advisory services to the Fund for compensation
based on the value of the average daily net assets of the Fund;
WHEREAS, the Fund and the Adviser have determined that it is appropriate and in
the best interests of the Fund and its shareholders to maintain the expenses of
the Fund at a level at or below the level to which the Fund would normally be
subject in order to maintain the Fund's expense ratio at the Maximum Annual
Operating Expense Limit (as hereinafter defined) specified in Schedule A hereto;
WHEREAS, the Fund and the Adviser initially entered into this Agreement
effective September 11, 2015;
WHEREAS, the Fund and the Adviser have determined to amend and restate this
Agreement in order to exclude distribution and service fees paid from the assets
of any new class of shares of the Fund pursuant to the Fund's Distribution and
Service Plan from the types of Fund Operating Expenses (as defined below) for
which the Adviser shall be responsible pursuant to the terms of this Agreement;
and
WHEREAS, the Fund and the Adviser have determined to amend and restate the
Schedule A hereto in order to provide for a new Initial Term End Date ( as
defined below).
NOW THEREFORE, the parties hereto agree as follows:
1. EXPENSE LIMITATION.
1.1. APPLICABLE EXPENSE LIMIT. To the extent that the aggregate expenses of
every character incurred by the Fund in any fiscal year, including but not
limited to investment advisory fees of the Adviser (but excluding any interest,
taxes, brokerage commissions, distribution and service fees, dividend and
interest expenses on securities sold short, acquired fund fees and expenses,
incentive fees, and other non-routine expenses not incurred in the ordinary
course of the Fund's business) ("Fund Operating Expenses"), exceed the Maximum
Annual Operating Expense Limit, as defined in Section 1.2 below, such excess
amount (the "Excess Amount") shall be the liability of the Adviser.
1.2. MAXIMUM ANNUAL OPERATING EXPENSE LIMIT. The Maximum Annual Operating
Expense Limit with respect to the Fund shall be the amount specified in Schedule
A based on a percentage of the average daily net assets of the Fund. The Maximum
Annual Operating Expense Limit for the Fund contemplates that certain expenses
for the Fund may be paid through the use of all or a portion of brokerage
commissions (or markups or markdowns) generated by the Fund.
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1.3. METHOD OF COMPUTATION. To determine the Adviser's liability with respect to
the Excess Amount, each month the Fund Operating Expenses for the Fund shall be
annualized as of the last day of the month. If the annualized Fund Operating
Expenses for any month of the Fund exceed the Maximum Annual Operating Expense
Limit of the Fund, the Adviser shall first waive or reduce its investment
advisory fee for such month by an amount sufficient to reduce the annualized
Fund Operating Expenses to an amount no higher than the Maximum Annual Operating
Expense Limit. If the amount of the waived or reduced investment advisory fee
for any such month is insufficient to pay the Excess Amount, the Adviser may
also remit to the Fund an amount that, together with the waived or reduced
investment advisory fee, is sufficient to pay such Excess Amount.
1.4. YEAR-END ADJUSTMENT. If necessary, on or before the last day of the first
month of each fiscal year (or the termination of this Agreement if sooner), an
adjustment payment shall be made by the appropriate party in order that the
amount of the investment advisory fees waived or reduced and other payments
remitted by the Adviser to the Fund with respect to the previous fiscal year
shall equal the Excess Amount for such fiscal year.
2. TERM AND TERMINATION OF AGREEMENT.
This Agreement shall continue in effect with respect to the Fund until the date
indicated on Schedule A ("Initial Term End Date") and shall thereafter continue
in effect from year to year for successive one-year periods, provided that this
Agreement may be terminated, without payment of any penalty, with respect to the
Fund:
(i) by the Fund, for any reason and at any time;
(ii) by the Adviser, for any reason, upon ninety (90) days' prior written notice
to the Fund at its principal place of business, such termination to be effective
as of the close of business on Initial Term End Date or as of the close of
business on the last day of the then-current one-year period; or at such earlier
time provided that such termination is approved by majority vote of the Trustees
and the Independent Trustees voting separately; and
(iii) by either party effective upon the effective date of the termination of
the Advisory Agreement for any reason.
3. MISCELLANEOUS.
3.1. CAPTIONS. The captions in this Agreement are included for convenience of
reference only and in no other way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
3.2. INTERPRETATION. Nothing herein contained shall be deemed to require the
Fund to take any action contrary to the Fund's Declaration of Trust or By-Laws,
or any applicable statutory or regulatory requirement to which it is subject or
by which it is bound, or to relieve or deprive the Fund's Board of Trustees of
its responsibility for and control of the conduct of the affairs of the Fund.
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3.3. DEFINITIONS. Any question of interpretation of any term or provision of
this Agreement, including but not limited to the investment advisory fee, the
computations of net asset values, and the allocation of expenses, having a
counterpart in or otherwise derived from the terms and provisions of the
Advisory Agreement or the 1940 Act, shall have the same meaning as and be
resolved by reference to such Advisory Agreement or the 0000 Xxx.
3.4. ENFORCEABILITY. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms or provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction.
3.5. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Delaware
without giving effect to the conflicts of law principles thereof, and the
parties consent to the jurisdiction of courts, both state or federal, in
Delaware, with respect to any dispute under this Agreement.
3.6. AMENDMENT. This Agreement may not be amended except pursuant to a writing
signed by the parties hereto and in accordance with the 1940 Act, when
applicable.
3.7. SEVERABILITY. If any provision of this Agreement shall be held or made
invalid by a court decision, statute or rule, or shall be otherwise rendered
invalid, the remainder of this Agreement shall not be affected thereby.
3.8. ENTIRE AGREEMENT. This Agreement, including any schedules hereto (each of
which is incorporated herein and made a part hereof by these references),
represents the entire agreement and understanding of the parties hereto, and
shall supersede any prior agreements.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their
respective officers thereunto duly authorized, as of the day and year first
above written.
XXXXXX DIVERSIFIED OPPORTUNITIES FUND
/s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: President
XXXXXX CAPITAL US LLC
/s/ Xxxxxx Rentoul
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Name: Xxxxxx Rentoul
Title: Director of Xxxxxx Group Limited,
Sole member of Xxxxxx Capital US LLC
AMENDED AND RESTATED
SCHEDULE A
DATED JULY 3, 2017
TO THE
AMENDED AND RESTATED EXPENSE LIMITATION AGREEMENT
DATED JULY 3, 2017
MAXIMUM ANNUAL OPERATING EXPENSE LIMIT
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NAME OF FUND CLASS OF SHARES MAXIMUM ANNUAL OPERATING EXPENSE LIMIT INITIAL TERM END DATE
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Xxxxxx Diversified Opportunities Fund Class I 1.61% July 2, 2018
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Xxxxxx Diversified Opportunities Fund Class A 1.61% July 2, 2018
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