EXHIBIT (d)(2)
AMENDMENT NUMBER ONE
TO THE
INVESTMENT ADVISORY AGREEMENT
This Amendment Number One, dated November 1, 2004, to the Investment Advisory
Agreement dated October 31, 1996 (the "Agreement") by and between Xxx Xxxxxx
Exchange Fund, (the "Fund"), a California Limited Partnership, and Xxx Xxxxxx
Asset Management (the "Adviser," successor in interest of Xxx Xxxxxx Asset
Management, Inc.), a Delaware statutory trust, hereby amends the terms and
conditions of the Agreement in the manner specified herein.
W I T N E S S E T H
WHEREAS, the Board of Managing General Partners of the Fund at a meeting held on
September 23, 2004 has approved a reduction in the investment advisory fee
payable by the Fund to the Adviser; and
WHEREAS, the parties desire to amend and restate Section 3 of the Agreement
relating to the investment advisory fee.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements hereinafter contained, the parties hereby agree to amend the
Agreement, as follows:
Section 3 of the Agreement is hereby deleted in its entirety and replaced with
the following:
3. Compensation Payable to the Adviser.
The Fund shall pay to the Adviser, as compensation for the services
rendered, facilities furnished and expenses paid by the Adviser, a monthly fee
computed at the annual rate of 0.30% of the Fund's average net assets. The
Adviser hereby agrees that it shall look for payment of such compensation solely
to the Fund's assets and not to any personal assets of any partner of the Fund.
Such average net assets shall be determined by taking the average of all of
the determinations of net asset value, made in the manner provided in the Fund's
Certificate and Agreement of Limited Partnership, for each business day during a
given calendar month. Such fee shall be payable for each calendar month as soon
as practicable after the end of that month.
The fees payable to the Adviser by the Fund pursuant to this Section 3
shall be reduced by any commissions, tender solicitation and other fees,
brokerage or similar payments received by the Adviser, or any other direct or
indirect majority owned subsidiary of Xxx Xxxxxx Investments Inc. or its
successor, in connection with the purchase and sale of portfolio investments of
the Fund, less any direct expenses incurred by such person, in
connection with obtaining such commissions, fees, brokerage or similar payments.
The Adviser shall use its best efforts to recapture all available tender offer
solicitation fees and exchange offer fees in connection with the Fund's
portfolio transactions and shall advise the Managing General Partners of any
other commissions, fees, brokerage or similar payments which may be possible for
the Adviser, or any other direct or indirect majority owned subsidiary of Xxx
Xxxxxx Investments Inc. or its successor, to receive in connection with Fund's
portfolio transactions or other arrangements which may benefit the Fund.
In the event that the ordinary business expenses of the Fund for any fiscal
year should exceed 1 1/2% of the first $30 million of the Fund's average daily
net assets determined in the manner described in Section 3, plus 1% of any
excess over $30 million of such average daily net assets so taken, the
compensation due the Adviser for such fiscal year shall be reduced by the amount
of such excess. The Adviser's compensation shall be so reduced by a reduction or
a refund thereof, at the time such compensation is payable after the end of each
calendar month during such fiscal year of the Fund, and if such amount should
exceed such monthly compensation, the Adviser shall pay the Fund an amount
sufficient to make up the deficiency, subject to readjustment during the Fund's
fiscal year. For purposes of this paragraph, all ordinary business expenses of
the Fund shall exclude expenses incurred by the Fund (i) for interest and taxes;
(ii) brokerage commissions; (iii) as a result of litigation in connection with a
suit involving a claim for recovery by the Fund; (iv) as a result of litigation
involving a defense against a liability asserted against the Fund, provided
that, if the Adviser made the decision or took the actions which resulted in
such claim, it acted in good faith without negligence or misconduct; (v) any
indemnification paid by the Fund to its officers and Managing General Partners
and the Adviser in accordance with applicable state and federal laws as a result
of such litigation.
If the Adviser shall serve for less than the whole of any month, the
foregoing compensation shall be prorated.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first above written.
XXX XXXXXX EXCHANGE FUND XXX XXXXXX ASSET MANAGEMENT
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxx, III
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Xxxxxx X. Xxxxxxxx Xxxxxx X. Xxxx, III
Executive Vice President Managing Director
and Principal Executive Officer
