Sub-item 77Q1: Exhibits
(e) Amended Advisory Agreement
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT is entered into this 16th day of March, 2006 by and
between XXXXXXXX FUND LTD, a Delaware statutory trust (the "Trust"), and
XXXXX-XXXXXXXX MANAGEMENT COMPANY, a Delaware corporation (the "Adviser").
Background
The Trust is registered as a diversified, closed end management
investment company under the Investment Company Act of 1940, as amended,
(the "1940 Act"). The Adviser is registered as an investment adviser
under the Investment Advisers Act of 1940, as amended (the "Advisers
Act"). The Trust desires to engage the Adviser to provide investment
advisory services to the Trust, and the Adviser desires to provide such
services to the Trust, all on the terms and conditions set forth below.
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
Agreement
SECTION 1. Appointment of Investment Adviser. The Trust hereby
appoints the Adviser to provide investment advisory services to the Trust,
and the Adviser hereby accepts such appointment, subject to the terms and
conditions set forth in this Agreement.
SECTION 2. Advisory Services. Subject at all times to the supervision
of the Board of Trustees of the Trust, the Adviser shall supervise all
aspects of the Trust's operations, including the investment and
reinvestment of cash, securities or other properties comprising the Trust's
assets.
In carrying out its obligations in the preceding paragraph of this
Section 2, the Adviser shall (a) supervise all aspects of the operations
of the Trust; (b) obtain and evaluate pertinent information about
significant developments and economic, statistical and financial data,
domestic, foreign or otherwise, whether affecting the economy generally or
any industry or the Trust or any issuer of securities held or to be
purchased by the Trust; (c) determine which issuers and securities shall
be represented in the Trust's investment portfolio and regularly report
thereon to the Board of Trustees; (d) place orders for the purchase and
sale of securities for the Trust; and (e) take, on behalf of the Trust,
such other action as may be necessary or appropriate in connection with
the foregoing.
In placing orders for the purchase and sale of securities for the
Trust, the Adviser shall conform to the Trust's investment objectives,
policies and limitations as delineated by statements contained in the
various documents filed by the Trust with the Securities and Exchange
Commission as such documents may from time to time be amended. The Trust
will make available to the Adviser such financial reports, proxy
statements, legal and other information relating to its investments as
may be in the possession of the Trust or available to it.
The Adviser is hereby obligated, in placing orders for the purchase
and sale of securities for the Trust, to obtain the most favorable price
and execution available under the circumstances and to keep true,
accurate and current books and records containing sufficient detail to
demonstrate compliance with this obligation. In determining the most
favorable price and execution in each transaction the determinative
factor is not necessarily the lowest possible commission cost. The
Adviser may consider the full range and quality of the services of broker-
dealers in placing brokerage including, but not by way of limitation, the
value of research provided as well as execution capability, commission rate,
financial responsibility and responsiveness of the broker-dealer to the
Adviser. Accordingly, to the extent provided by law, in executing
portfolio transactions, the Adviser may pay a broker-dealer which provides
brokerage or research services a commission in excess of that which
another broker-dealer would have charged for the same transaction.
SECTION 3. Independent Contractor. The Adviser shall, for all purposes
of this Agreement, be deemed to be an independent contractor and shall
have no authority to act for or represent the Trust unless otherwise
provided. No agreement, bid, offer, commitment, contract or other
engagement entered into by the Adviser, whether on behalf of the Adviser
or whether purported to have been entered into by the Adviser on behalf
of the Trust, shall be binding upon the Trust, and all acts authorized
to be done by the Adviser under this Agreement shall be done by the
Adviser as an independent contractor and not as agent.
SECTION 4. Expenses. The Adviser shall provide the Trust with office
space and facilities, and pay all expenses incurred by the Adviser in the
performance of this Agreement.
The Trust will pay all expenses incurred by it and not assumed by the
Adviser including, but not by way of limitation, expenses in connection
with its organization and with the offering of its securities; fees and
expenses of its unaffiliated trustees; legal and accounting fees, fees of
its custodian, registrar, transfer agent; dividend disbursing agent and
Dividend Reinvestment Plan Agent; taxes, interest, brokerage commissions;
and direct costs of postage, printing, copying and travel expenses
attributable to the conduct of the business of the Trust.
The Trust will also pay for such accounting and administrative
services which are to be provided by the Adviser under a separate
administrative services agreement between the Trust and the Adviser, which
has been approved by the Board of Trustees, including all of the trustees
who are not "interested persons," as defined in the 1940 Act, of any such
party.
SECTION 5. Compensation. As compensation for the services performed by
the Adviser, the Trust will pay the Adviser on the last day of each month
a fee for such month computed at an annual rate of .75% of the first
$100,000,000 of the Trust's average net assets and .50% of the Trust's
average net assets in excess of $100,000,000.
For the purpose of calculation of the fee, the net asset value for a
month will be the average of the Trust's net asset values at the close of
business on the last business day on which the New York Stock Exchange is
open in each week in the month.
If this Agreement shall become effective subsequent to the first day
of a month, or shall terminate before the last day of a month, the
Adviser's compensation for such fraction of the monthly period shall be
determined by applying the foregoing percentage to the net asset value of
the Trust during such fraction of a monthly period (which net asset value
shall be determined in such reasonable manner as the Board of the Trust
shall deem appropriate) and in the proportion that such fraction of a
monthly period bears to the entire month.
Compensation under this Agreement will begin to accrue on its
effective date.
SECTION 6. Approval of Agreement; Termination. This Agreement will be
submitted to the Trust's shareholders for approval. If approved by the
vote of a "majority of the outstanding voting securities" of the Trust as
such term is defined in the 1940 Act, this Agreement will be in effect
from the date of approval. Unless terminated by either party, this
Agreement will remain in effect until December 31, 2006, and for
successive one-year periods thereafter, provided that such continuation is
approved annually (i) by the Board of Trustees of the Trust or by the
holders of a majority of the outstanding voting securities of the Trust
and (ii) by a majority of the trustees who are not parties to this
Agreement or "interested persons," as defined in the 1940 Act, of any
such party.
This Agreement is terminable without penalty by either party on 60
days' written notice and will terminate automatically in the event of its
assignment.
Except as specified above, this Agreement may not be amended,
transferred, assigned, sold or in any other manner hypothecated or
pledged; provided, however, that this limitation shall not prevent any
minor amendments to this Agreement which may be required by Federal or
state regulatory bodies.
SECTION 7. Liability. The Adviser shall give the Trust the benefit of
its best judgment and efforts in rendering the services set forth herein.
The Trust agrees as an inducement to the undertaking of these services by
the Adviser that the Adviser shall not be liable for any error of judgment
or for any loss suffered by the Trust in connection with any matters to
which this Agreement relates, except that nothing herein contained shall
be construed to protect the Adviser against any liability by reason of
willful misfeasance, bad faith or gross negligence in the performance by
the Adviser of its duties or the reckless disregard of the Adviser's
obligations or duties under this Agreement.
SECTION 8. Multiple Capacities. Except to the extent necessary for
performance of the Adviser's obligations hereunder, nothing shall restrict
the Adviser's right or the right of any of the Adviser's directors,
officers or employees who may be trustees, officers or employees of the
Trust to engage in any other business or to devote time and attention to
the management or other aspects of any other business whether of a similar
or dissimilar nature or to render services of any kind to any other
corporation, firm, individual or association.
The Trust understands that the Adviser now acts and will continue
to act as an investment adviser to another registered investment company
and may act in the future as an investment adviser to fiduciary and other
managed accounts and investment companies. The Trust has no objection to
the Adviser so acting, provided that whenever the Trust and one or more
other investment companies or accounts advised by the Adviser have
available funds for investment, investments suitable and appropriate for
each will be allocated in accordance with a formula believed to be
equitable to each company and account. The Trust recognizes that in some
cases this procedure may adversely affect the size of the positions
obtainable and the prices realized for the Trust.
It is understood and agreed that the trustees, officers, agents,
employees and shareholders of the Trust may be interested in the Adviser
as directors, officers, stockholders, employees, agents or otherwise, and
that the directors, officers, agents, employees and stockholders of the
Adviser may be interested in the Trust as a shareholder or otherwise.
SECTION 9. Concerning Applicable Provisions of Law, Etc. This Agreement
shall be subject to all applicable provisions of law, including, but not
limited to, the applicable provisions of the 1940 Act; and, to the extent
that any provisions herein contained conflict with any such applicable
provisions of law, the latter shall control.
The laws of the State of Delaware shall, except to the extent that any
applicable provisions of some other law shall be controlling, govern the
construction, validity and effect of this Agreement.
The headings preceding the text of the several sections herein are
inserted solely for convenience of reference and shall not affect the
meaning, construction or effect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
XXXXXXXX FUND LTD.
By
(President)
XXXXX-XXXXXXXX MANAGEMENT COMPANY
By
(President)
DMEAST #9489760 v1 6
