AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
July 6, 1999, as Amended and Restated May 3, 2004
Credit Suisse Asset Management, LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Credit Suisse Capital Appreciation Fund (the "Fund"), a
business trust organized under the laws of the Commonwealth of Massachusetts,
herewith confirms its agreement with Credit Suisse Asset Management, LLC (the
"Adviser") as follows:
1. Investment Description; Appointment
The Fund desires to employ the capital of the Fund by
investing and reinvesting in investments of the kind and in accordance with the
limitations specified in its Agreement and Declaration of Trust, as may be
amended from time to time, and in the Fund's Prospectus(es) and Statement(s) of
Additional Information as from time to time in effect (the "Prospectus" and
"SAI," respectively), and in such manner and to such extent as may from time to
time be approved by the Board of Trustees of the Fund. Copies of the Fund's
Prospectus and SAI have been or will be submitted to the Adviser. The Fund
desires to employ and hereby appoints the Adviser to act as investment adviser
to the Fund. The Adviser accepts the appointment and agrees to furnish the
services for the compensation set forth below.
2. Services as Investment Adviser
Subject to the supervision and direction of the Board of
Trustees of the Fund, the Adviser will (a) act in strict conformity with the
Fund's Agreement and Declaration of Trust, the Investment Company Act of 1940
(the "1940 Act") and the Investment Advisers Act of 1940, as the same may from
time to time be amended, (b) manage the Fund's assets in accordance with the
Fund's investment objective and policies as stated in the Fund's Prospectus and
SAI, (c) make investment decisions for the Fund, (d) place purchase and sale
orders for securities on behalf of the Fund, (e) exercise voting rights in
respect of portfolio securities and other investments for the Fund, and (f)
monitor and evaluate the services provided by the Fund's investment
sub-adviser(s), if any, under the terms of the applicable investment
sub-advisory agreement(s). In providing those services, the Adviser will provide
investment research and supervision of the Fund's investments and conduct a
continual program of investment, evaluation and, if appropriate, sale and
reinvestment of the Fund's assets. In addition, the Adviser will furnish the
Fund with whatever statistical information the Fund may reasonably request with
respect to the securities that the Fund may hold or contemplate purchasing.
Subject to the approval of the Board of Trustees of the Fund and where
required, the Fund's shareholders, the Adviser may engage an investment
sub-adviser or sub-advisers to
provide advisory services in respect of the Fund and may delegate to such
investment sub-adviser(s) the responsibilities described in subparagraphs (b),
(c), (d) and (e) above. In the event that an investment sub-adviser's engagement
has been terminated, the Adviser shall be responsible for furnishing the Fund
with the services required to be performed by such investment sub-adviser(s)
under the applicable investment sub-advisory agreements or arranging for a
successor investment sub-adviser(s) to provide such services on terms and
conditions acceptable to the Fund and the Fund's Board of Trustees and subject
to the requirements of the 1940 Act.
3. Brokerage
In executing transactions for the Fund, selecting brokers or
dealers and negotiating any brokerage commission rates, the Adviser will use its
best efforts to seek the best overall terms available. In assessing the best
overall terms available for any portfolio transaction, the Adviser will consider
all factors it deems relevant including, but not limited to, breadth of the
market in the security, the price of the security, the financial condition and
execution capability of the broker or dealer and the reasonableness of any
commission for the specific transaction and for transactions executed through
the broker or dealer in the aggregate. In selecting brokers or dealers to
execute a particular transaction and in evaluating the best overall terms
available, the Adviser may consider the brokerage and research services (as
those terms are defined in Section 28(e) of the Securities Exchange Act of 1934,
as the same may from time to time be amended) provided to the Fund and/or other
accounts over which the Adviser or an affiliate exercises investment discretion.
4. Information Provided to the Fund
The Adviser will keep the Fund informed of developments
materially affecting the Fund, and will, on its own initiative, furnish the Fund
from time to time with whatever information the Adviser believes is appropriate
for this purpose.
5. Standard of Care
The Adviser shall exercise its best judgment in rendering the
services listed in paragraphs 2, 3 and 4 above. The Adviser shall not be liable
for any error of judgment or mistake of law or for any loss suffered by the Fund
in connection with the matters to which this Agreement relates, provided that
nothing herein shall be deemed to protect or purport to protect the Adviser
against any liability to the Fund or to shareholders of the Fund to which the
Adviser would otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence on its part in the performance of its duties or by reason of
the Adviser's reckless disregard of its obligations and duties under this
Agreement.
6. Compensation
In consideration of the services rendered pursuant to this
Agreement, the Fund will pay the Adviser an annual fee calculated at an annual
rate of 0.70% of the Fund's average daily net assets. The fee for the period
from the date of this Agreement to the end of the year
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shall be prorated according to the proportion that such period bears to the full
yearly period. Upon any termination of this Agreement before the end of a year,
the fee for such part of that year shall be prorated according to the proportion
that such period bears to the full yearly period and shall be payable upon the
date of termination of this Agreement. For the purpose of determining fees
payable to the Adviser, the value of the Fund's net assets shall be computed at
the times and in the manner specified in the Fund's Prospectus or SAI.
7. Expenses
The Adviser will bear all expenses in connection with the
performance of its services under this Agreement. The Fund will bear its
proportionate share of certain other expenses to be incurred in its operation,
including: investment advisory and administration fees; taxes, interest,
brokerage fees and commissions, if any; fees of Trustees of the Fund who are not
officers, directors, or employees of the Adviser, any sub-adviser or any of
their affiliates; fees of any pricing service employed to value shares of the
Fund; Securities and Exchange Commission fees and state blue sky qualification
fees; charges of custodians and transfer and dividend disbursing agents; the
Fund's proportionate share of insurance premiums; outside auditing and legal
expenses; costs of maintenance of the Fund's existence; costs attributable to
investor services, including, without limitation, telephone and personnel
expenses; costs of preparing and printing prospectuses and statements of
additional information for regulatory purposes and for distribution to existing
shareholders; costs of shareholders' reports and meetings of the shareholders of
the Fund and of the officers or Board of Trustees of the Fund; and any
extraordinary expenses.
The Fund will be responsible for nonrecurring expenses which
may arise, including costs of litigation to which the Fund is a party and of
indemnifying officers and Trustees of the Fund with respect to such litigation
and other expenses as determined by the Trustees.
8. Services to Other Companies or Accounts
The Fund understands that the Adviser now acts, will continue
to act and may act in the future as investment adviser to fiduciary and other
managed accounts and to one or more other investment companies or series of
investment companies, and the Fund has no objection to the Adviser so acting,
provided that whenever the Fund and one or more other accounts or investment
companies or portfolios 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 entity. The Fund
recognizes that in some cases this procedure may adversely affect the size of
the position obtainable for the Fund. In addition, the Fund understands that the
persons employed by the Adviser to assist in the performance of the Adviser's
duties hereunder will not devote their full time to such service and nothing
contained herein shall be deemed to limit or restrict the right of the Adviser
or any affiliate of the Adviser to engage in and devote time and attention to
other businesses or to render services of whatever kind or nature, provided that
doing so does not adversely affect the ability of the adviser to perform its
services under this Agreement.
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9. Term of Agreement
This Agreement shall continue for an initial two-year period
commencing on the date first written above, and thereafter shall continue
automatically for successive annual periods, provided such continuance is
specifically approved at least annually by (a) the Board of Trustees of the Fund
or (b) a vote of a "majority" (as defined in the 0000 Xxx) of the Fund's
outstanding voting securities, provided that in either event the continuance is
also approved by a majority of the Board of Trustees who are not "interested
persons" (as defined in said Act) of any party to this Agreement, by vote cast
in person at a meeting called for the purpose of voting on such approval. This
Agreement is terminable, without penalty, on 60 days' written notice, by the
Board of Trustees of the Fund or by vote of holders of a majority of the Fund's
shares, or upon 90 days' written notice, by the Adviser. This Agreement will
also terminate automatically in the event of its assignment (as defined in said
Act).
10. Representation by the Fund
The Fund represents that a copy of its Agreement and
Declaration of Trust, dated January 20, 1987, together with all amendments
thereto, is on file in the office of the Secretary of State of the Commonwealth
of Massachusetts.
11. Limitation of Liability
It is expressly agreed that this Agreement was executed by or
on behalf of the Fund and not by the Trustees of the Fund or its officers
individually, and the obligations of the Fund hereunder shall not be binding
upon any of the Trustees, shareholders, nominees, officers, agents or employees
of the Fund individually, but bind only the assets and property of the Fund, as
provided in the Agreement and Declaration of Trust of the Fund. The execution
and delivery of this Agreement have been authorized by the Trustees and the sole
shareholder of the Fund and signed by an authorized officer of the Fund, acting
as such, and neither such authorization by such Trustees and shareholder nor
such execution and delivery by such officer shall be deemed to have been made by
any of them individually or to impose any liability on any of them personally,
but shall bind only the trust property of the Fund as provided in its Agreement
and Declaration of Trust.
12. Miscellaneous
The Fund recognizes that directors, officers and employees of
the Adviser may from time to time serve as directors, trustees, officers and
employees of corporations and business trusts (including other investment
companies) and that such other corporations and trusts may include the name
"CS", "CSFB", "CSAM" or "Credit Suisse" (or any combination thereof or as part
of their names, and that the Adviser or its affiliates may enter into advisory
or other agreements with such other corporations and trusts. If the Adviser
ceases to act as the investment adviser of the Fund's shares, the Fund agrees
that, at the Adviser's request, the Fund's license to use the words "CS",
"CSFB", "CSAM" or "Credit Suisse" or any combination thereof) will terminate and
that the Fund will take all necessary action to change the name of the
4
Fund to names not including the words "CS", "CSFB", "CSAM" or "Credit Suisse"
(or any combination thereof).
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Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place below indicated,
whereupon it shall become a binding agreement between us.
Very truly yours,
CREDIT SUISSE CAPITAL APPRECIATION FUND
By: /s/Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Vice President and Secretary
Accepted:
CREDIT SUISSE ASSET MANAGEMENT, LLC
By: /s/Xxx Xxxxxx
---------------------------
Name: Xxx Xxxxxx
Title: Managing Director
