Exhibit G
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AMENDED INVESTMENT MANAGEMENT AGREEMENT
dated as of August 15, 2005
BY AND BETWEEN
RESTORATION OPPORTUNITIES FUND,
a Delaware statutory trust
AND
HIGHLAND CAPITAL MANAGEMENT, L.P.,
a Delaware limited partnership
TABLE OF CONTENTS
Page
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1. General Duties of the Investment Manager................................1
2. Duties and Obligations of the Investment Manager with Respect
to the Administration of the Company....................................2
3. Authority to Bind the Company; No Joint Venture.........................4
4. Limitations Relating to Investments.....................................5
5. Brokerage...............................................................6
6. Compensation............................................................6
7. Expenses................................................................7
8. Services to Other Companies or Accounts.................................8
9. Duty of Care and Loyalty................................................8
10. Indemnification.........................................................8
11. Term of Agreement; Events Affecting the Investment Manager;
Survival of Certain Terms..............................................10
12. Power of Attorney; Further Assurances..................................10
13. Amendment of this Agreement............................................11
14. Notices................................................................11
15. Binding Nature of Agreement; Successors and Assigns....................12
16. Entire Agreement.......................................................12
17. Costs and Expenses.....................................................12
18. Books and Records......................................................12
19. Titles Not to Affect Interpretation....................................13
20. Provisions Separable...................................................13
21. Governing Law..........................................................13
22. Execution in Counterparts..............................................13
23. Use of the Name Restoration............................................13
AMENDED INVESTMENT MANAGEMENT AGREEMENT
This Amended Investment Management Agreement (the "Agreement"), dated
as of August 15, 2005, is made by and between Restoration Opportunities Fund
(the "Company"), a Delaware statutory trust which will be registered as a
nondiversified closed-end management investment company act under the
Investment Company Act of 1940 and the rules and regulations promulgated
thereunder and exemptions granted therefrom, as amended from time to time (the
"1940 Act"), and Highland Capital Management, L.P. (the "Investment Manager"),
a Delaware limited partnership registered as an investment adviser under the
Investment Advisers Act of 1940 (the "Advisers Act"). Capitalized terms used
but not otherwise defined in this Agreement shall have the meanings given to
them in the Agreement and Declaration of Trust of the Company dated as of May
16, 2005 (as in effect on the date hereof and as amended from time to time
with the consent of the Investment Manager, the "Declaration of Trust").
1. General Duties of the Investment Manager.
Subject to the direction and control of the Company's Board of
Trustees (the "Board") and subject to and in accordance with the terms of the
Declaration of Trust, the policies adopted or approved by the Board, the
conditions of any exemptive order obtained by or for the benefit of the
Company from the Securities and Exchange Commission (the "SEC") and this
Agreement, the Investment Manager agrees to supervise and direct the
investment and reinvestment of the Assets and perform the duties set forth
herein, and shall perform on behalf of the Company those investment and
leverage related duties and functions assigned to the Company or the
Investment Manager in the Declaration of Trust and the Statements of
Preferences for any Preferred Shares (collectively, the "Transaction
Documents"), and shall have such other powers with respect to the investment
and leverage related functions of the Company as shall be delegated from time
to time to the Investment Manager by the Board. The Company has executed the
Transaction Documents and the Investment Manager is hereby granted, and shall
have, full power to take all actions and execute and deliver all necessary and
appropriate documents and instruments on behalf of the Company in accordance
with the Transaction Documents, the policies adopted or approved by the Board,
the conditions of any exemptive order obtained by or for the benefit of the
Company or the Investment Manager from the SEC and this Agreement. The
Investment Manager shall endeavor to comply in all material respects with the
1940 Act and all rules and regulations thereunder, all other applicable
federal and state laws and regulations and the applicable provisions of the
Transaction Documents in performing its duties under this Agreement. Subject
to the foregoing and the other provisions of this Agreement, and the direction
and control of the Board, the Investment Manager is hereby appointed as the
Company's agent and attorney-in-fact with authority to negotiate, execute and
deliver all documents and agreements on behalf of the Company and to do or
take all related acts, with the power of substitution, to acquire, dispose of
or otherwise take action with respect to or affecting the Investments (as
defined in Section 4(a) hereof), including, without limitation:
(a) identifying and originating Investments to be
purchased by the Company, selecting the dates for such purchases, and
purchasing or directing the purchase of such Investments on behalf of the
Company;
(b) identifying Investments owned by the Company to be
sold by the Company, selecting the dates for such sales, and selling such
Investments on behalf of the Company;
(c) negotiating and entering into, on behalf of the
Company, documentation providing for the purchase and sale of Investments,
including without limitation, confidentiality agreements and commitment
letters;
(d) structuring the terms of, and negotiating, entering
into and/or consenting to, on behalf of the Company, documentation relating to
Investments to be purchased, held, exchanged or sold by the Company, including
any amendments, modifications or supplements with respect to such
documentation;
(e) exercising, on behalf of the Company, rights and
remedies associated with Investments, including without limitation, rights to
petition to place an obligor or issuer in bankruptcy proceedings, to vote to
accelerate the maturity of an Investment, to waive any default, including a
payment default, with respect to an Investment and to take any other action
which the Investment Manager deems necessary or appropriate in its discretion
in connection with any restructuring, reorganization or other similar
transaction involving an obligor or issuer with respect to an Investment,
including without limitation, initiating and pursuing litigation;
(f) responding to any offer in respect of Investments by
tendering the affected Investments, declining the offer, or taking such other
actions as the Investment Manager may determine;
(g) exercising all voting, consent and similar rights of
the Company on its behalf and advising the Company with respect to matters
concerning the Investments;
(h) advising and assisting the Company with respect to
the valuation of the Assets;
(i) retaining legal counsel and other professionals (such
as financial advisers) to assist in the structuring, negotiation,
documentation, administration and modification and restructuring of
Investments; and
(j) providing the Company with such assistance as the Board
may request in processing subscription and/or transfer applications for the
Shares.
2. Duties and Obligations of the Investment Manager with Respect
to the Administration of the Company.
The Investment Manager also agrees to furnish office facilities and
equipment and clerical, bookkeeping and administrative services (other than
such services, if any, provided by the Company's custodian and other service
providers) to the Company. To the extent requested by the Company, the
Investment Manager agrees to provide the following administrative services:
(a) oversee the determination and publication of the
Company's net asset value in accordance with the Company's policy as adopted
from time to time by the Board and communicated to the Investment Manager in
writing;
(b) maintain or oversee the maintenance of the books and
records of the Company as required under the 1940 Act and maintain (or oversee
maintenance by other persons) such other books and records required by law or
for the proper operation of the Company;
(c) oversee the preparation and filing of the Company's
federal, state and local income tax returns and any other required tax returns
or reports;
(d) review the appropriateness of and arrange for payment
of the Company's expenses;
(e) prepare for review and approval by officers and other
authorized signatories of the Company (collectively, the "Authorized
Signatories") financial information for the Company's semi-annual and annual
reports and other communications with shareholders required or otherwise to be
sent to Company shareholders, and arrange for the printing and dissemination
of such reports and communications to shareholders;
(f) prepare for review by the Authorized Signatories and
Board of the Company the Company's periodic financial reports required to be
filed with the SEC and such other reports, forms and filings, as may be
mutually agreed upon or as may be required by law or any Statements of
Preferences;
(g) prepare reports relating to the business and affairs
of the Company as may be mutually agreed upon and not otherwise prepared by
others;
(h) make such reports and recommendations to the Board
concerning the performance and fees of any of the Company's service providers
as the Board may reasonably request or deem appropriate;
(i) oversee and review calculations of fees paid to the
Company's service providers;
(j) oversee the Company's portfolio and perform necessary
calculations as required under Section 18 of the 1940 Act;
(k) consult with the Audit Committee of the Board, the
Authorized Signatories, and the Company's independent accountants, legal
counsel, custodian and other service providers in establishing the accounting
policies of the Company and monitor financial and shareholder accounting
services;
(l) review implementation of any share purchase programs
authorized by the Board;
(m) determine the amounts available for distribution as
dividends and distributions to be paid by the Company to its shareholders;
(n) prepare and arrange for the printing of dividend
notices to shareholders;
(o) provide the Company's dividend disbursing agent and
custodian with such information as is required for such parties to effect the
payment of dividends and distributions;
(p) prepare such information and reports as may be
required by any banks, if any, from which the Company borrows funds;
(q) provide such assistance to the Company's custodian,
counsel, auditors and other service providers as generally may be required to
properly carry on the business and operations of the Company;
(r) assist in the preparation and filing of Forms 3, 4,
and 5 pursuant to Section 16 of the Securities Exchange Act of 1934, as
amended, and Section 30(h) of the 1940 Act for the officers, Authorized
Signatories and trustees of the Company, such filings to be based on
information provided by those persons;
(s) respond to or refer to the Company's officers or
Authorized Signatories shareholder (including any potential shareholder)
inquiries relating to the Company; and
(t) supervise any other aspects of the Company's
administration as may be agreed to by the Company and the Investment Manager.
All services are to be furnished through the medium of any
trustees, officers, Authorized Signatories or employees of the Investment
Manager or its affiliates as the Investment Manager deems appropriate in order
to fulfill its obligations hereunder.
The Company will reimburse the Investment Manager and its
affiliates for all out-of-pocket expenses incurred by them in connection with
the performance of the administrative services described in this paragraph 2.
3. Authority to Bind the Company; No Joint Venture.
(a) Except as provided in or pursuant to Sections 1, 2
and 12 hereof or as otherwise delegated or approved (either generally or
specifically) by the Board, the Investment Manager shall have no authority to
bind or obligate the Company. Nothing in this Agreement shall be deemed to
create a joint venture or partnership between the parties with respect to the
arrangements set forth in this Agreement. For all purposes hereof, the
Investment Manager shall be deemed to be an independent contractor.
(b) The Investment Manager shall act in conformity with
the written instructions and directions of the Board, except to the extent that
authority has been delegated to the Investment Manager pursuant to the terms of
this Agreement and the Transaction Documents. The Investment Manager will not
be bound to follow any amendment to any Transaction Document until it has
received written notice thereof and until it has received a copy of the
amendment from the Company and has consented thereto.
(c) The Investment Manager may, with respect to the
affairs of the Company, consult with such legal counsel, accountants and other
advisors as may be selected by the Investment Manager. The Investment Manager
shall be fully protected, to the extent permitted by applicable law, in acting
or failing to act hereunder if such action or inaction is taken or not taken in
good faith by the Investment Manager in accordance with the advice or opinion
of such counsel, accountants or other advisors. The Investment Manager shall be
fully protected in relying upon any writing signed in the appropriate manner
with respect to any instruction, direction or approval of any of the Board and
may also rely on opinions of the Investment Manager's counsel with respect to
such instructions, directions and approvals. The Investment Manager shall also
be fully protected when acting upon any instrument, certificate or other
writing the Investment Manager believes in good faith to be genuine and to be
signed or presented by the proper person or persons. The Investment Manager
shall be under no duty to make any investigation or inquiry as to any statement
contained in any such writing and may accept the same as conclusive evidence of
the truth and accuracy of the statements therein contained if the Investment
Manager in good faith believes the same to be genuine.
4. Limitations Relating to Investments.
(a) Investments. Except as otherwise provided in this
Section 4 and subject to the requirements of the Transaction Documents, the
Agreement and Declaration of Trust and applicable law, the Investment Manager
may cause the Company from time to time to purchase:
(i) debt securities or debt obligations,
including bank loans or interests therein ("Debt Obligations");
(ii) stock, warrants or other equity securities
("Securities"); and
(iii) any other investments of any type of asset
the Company is permitted to make (together with Securities and Debt
Obligations, "Investments").
(b) Company is not a Bank. The Investment Manager may not
purchase any Debt Obligation if the related credit agreement, note, indenture
or other documentation by its terms requires any such purchase to be made only
by a bank, savings and loan, thrift, trust company or other similar
deposit-taking institution.
(c) Origination Fees. The Investment Manager shall seek
to have the Company receive its pro-rata share, measured by the amount invested
or proposed to be invested by the investors in any Investment, of any
origination, structuring, or similar fees normally payable to lenders or
structurers as compensation for services ("Origination or Similar Fees")
payable with respect to any Investment, whether or not any other investment
funds or accounts for which the Investment Manager or any of its Affiliated
Persons acts as investment adviser (the "Highland Accounts") share in such
fees, except to the extent the Investment Manager determines such sharing could
cause the Company to fail to satisfy any requirement for qualification as a
regulated investment company under Subchapter M of the Code. Notwithstanding
anything herein, in any Transaction Document to the contrary, to the extent
that any Origination or Similar Fees with respect to the Company's share of
such Investment are paid to the Investment Manager or any Affiliated Persons as
additional compensation, such amount shall be reimbursed to the Company unless
the exception to the preceding sentence is in effect, in which case such amount
shall be paid to the other accounts participating in such Investment or
returned to the party paying such Origination or Similar Fees.
(d) Co-Investments. The Company may not co-invest with
any fund or account managed by the Investment Manager or its Affiliated Persons
that is not a registered investment company under the 1940 Act or in any
Investment as to which the Investment Manager or its Affiliated Persons has
negotiated non-pricing terms, except (i) to the extent permitted by the 1940
Act or any exemptive relief obtained by the Company and the Investment Manager
thereunder, including any conditions to the granting by the SEC of such relief,
and (ii) pursuant to any policies and procedures adopted by the Board with
respect to such co-investments and any other applicable provisions of any
Transaction Document and this Agreement. For the avoidance of doubt, the
provisions of this Section 4(d) shall not be interpreted so as to prevent the
Company from making co-investments with respect to investments in which the
Investment Manager or its Affiliated Persons negotiated only pricing terms.
5. Brokerage.
The Investment Manager shall effect all purchases and sales
of securities in a manner consistent with the principles of best execution,
taking into account net price (including commissions) and execution capability
and other services which the broker or other intermediary may provide. In this
regard, the Investment Manager may effect transactions which cause the Company
to pay a commission in excess of a commission which another broker or other
intermediary would have charged; provided, however, that the Investment
Manager shall have first determined that such commission is reasonable in
relation to the value of the brokerage and research services performed by that
broker or other intermediary or has received approval from the Board for the
contemplated use of the Company's use of brokerage.
6. Compensation.
(a) The Company agrees to pay to the Investment Manager
and the Investment Manager agrees to accept as partial compensation for
services rendered by the Investment Manager as such, a fee (the "Management
Fee"), calculated and payable quarterly in arrears at an annual rate equal to
1.5% of the aggregate Net Asset Value of the Company. "Net Asset Value" shall
mean the market value of all liquid securities at the time of valuation and the
cost of any illiquid assets at the time of valuation. For these purposes,
assets will be considered "illiquid" if the Investment Manager reasonably
determines, in accordance with procedures adopted by the Board, that (i)
reliable market quotations are not readily available for such security or (ii)
although reliable market quotations are readily available, the majority of such
securities held by accounts managed by the Investment Manager could not be sold
or disposed of in the ordinary course of business (without taking into account
any illiquidity or similar discounts) within fourteen trading days at
approximately the price at which the security is valued by the Company without
significantly depressing the level of such market quotations; provided, that
the limitation provided in clause (ii) above shall not be applicable if the
inability to dispose of a majority of such securities within such period is due
to the Advisor's being an affiliate of the issuer on behalf of the Adviser's
clients or possessing inside information regarding such issuer. For the
avoidance of doubt, securities, if quoted on a major exchange or listed in the
pink sheets, or loans and bonds quoted by a reputable third party quotation
system will be treated as securities for which reliable market quotations are
readily available. For the purposes of this Agreement, the net asset value of
the Company will be calculated as of the last business day of each month in
accordance with the valuation policies and guidelines approved from time to
time by the Board of Trustees.
(b) The Carried Interest will be paid as a fee. The
Carried Interest is an amount (payable annually) such that after receipt
thereof the Investment Manager will have received from the Company 20% of the
realized and unrealized cumulative total return of the Company on its assets
attributable to the Common Shares and the Special Share. The Carried Interest
shall be payable as of December 31 of each year and shall be paid not later
than completion of the audit of the Company for such year. If there is positive
return through any interim month in excess of the high watermark described
below, the Company will accrue an appropriate amount in respect of the earned
Carried Interest potentially payable at the end of the year. If there is
negative return in any calendar year, no Carried Interest will be paid until
the negative return (as a percentage of average net assets attributable to the
Common Shares and the Special Share, or, if less, as a percentage of such net
assets at the time such negative return is experienced) has been recovered in
full ("High Watermark Provision"). For the avoidance of doubt, all total return
(positive or negative) will be determined in dollars (the percentage figure in
connection with recoupment of negative return being utilized solely to
calculate the dollar amount of negative return required to be recouped). For
purposes of all Carried Interest calculations, illiquid assets (as defined for
purposes of the Management Fee) will be valued at the lesser of cost or fair
market value (as determined by the Investment Manager in good faith). Such
amounts outlined above and paid to the Investment Manager are referred to
herein as the "Carried Interest."
(c) On and after such time as the Board of Trustees
determines that it is possible under the 1940 Act to pay the Carried Interest
as a dividend on a special share, the Company shall, at the request of the
Investment Manager, issue to it the Special Share for $1,000. At any time the
Special Share is outstanding no Carried Interest shall be payable pursuant to
Section 6(b) above.
7. Expenses. The Company will be responsible for paying the
Management Fee, the Carried Interest, due diligence and negotiation expenses,
fees and expenses of custodians, administrators, transfer and distribution
agents, counsel and directors, insurance, filings and registrations, proxy
expenses, expenses of communications to investors, compliance expenses,
interest, taxes, portfolio transaction expenses, costs of responding to
regulatory inquiries and reporting to regulatory authorities, costs and
expenses of preparing and maintaining the books and records of the Company,
indemnification, litigation, extraordinary expenses and such other expenses as
are approved by the Trustees as being reasonably related to the organization,
offering, capitalization, operation or administration of the Company and any
portfolio investments. Expenses associated with investments by multiple funds
of the Investment Manager will be shared proportionately by the participating
funds. Expenses associated with the general overhead of the Investment Manager
will not be covered by the Company.
8. Services to Other Companies or Accounts.
(a) The Investment Manager and its Affiliated Persons,
employees or associates are in no way prohibited from, and intend to, spend
substantial business time in connection with other businesses or activities,
including, but not limited to, managing investments, advising or managing
entities whose investment objectives are the same as or overlap with those of
the Company, participating in actual or potential investments of the Company or
any Shareholder, providing consulting, merger and acquisition, structuring or
financial advisory services, including with respect to actual, contemplated or
potential investments of the Company, or acting as a director, officer or
creditors' committee member of, adviser to, or participant in, any corporation,
partnership, trust or other business entity. The Investment Manager and its
Affiliated Persons may, and expect to, receive fees or other compensation from
third parties for any of these activities, which fees will be for the benefit
of their own account and not the Company.
(b) In addition, the Investment Manager and its
Affiliated Persons may manage Highland Accounts other than the Company that
invest in assets eligible for purchase by the Company.
(c) The Company may have the ability, under certain
circumstances, to take certain actions that would have an adverse effect on
Highland Accounts other than the Company. In these circumstances, the
Investment Manager and its Affiliated Persons will act in a manner believed to
be equitable to the Company and such other Highland Accounts, including
co-investment in accordance with the conditions of any exemptive relief
obtained by the Company and the Investment Manager.
9. Duty of Care and Loyalty.
The Investment Manager shall not be liable, responsible or accountable
in damages or otherwise to the Company or any shareholder for any loss,
liability, damage, settlement, costs, or other expense (including reasonable
attorneys' fees) incurred by reason of any act or omission or any alleged act
or omission performed or omitted by the Investment Manager and its employees,
partners and affiliates, in connection with the establishment, management or
operations of the Company or its investments (including in connection with
serving on creditors' committees and boards of directors for companies in the
Company's portfolio) unless such act or failure to act arises out of the bad
faith, willful misfeasance, gross negligence or reckless disregard of the
Investment Manager's duty to the Company or its shareholders, as the case may
be (such conduct, "Disabling Conduct"). Subject to the foregoing, all such
Persons shall look solely to the Assets (including, without limitation, the
Unfunded Commitments) for satisfaction of claims of any nature arising in
connection with the affairs of the Company. If any indemnitee is made a party
to any suit or proceeding to enforce any such liability, subject to the
foregoing exception, such indemnitee shall not, on account thereof, be held to
any personal liability.
10. Indemnification.
(a) The Company will indemnify the Trustees, officers and
the Investment Manager and any officer, director, member, manager, employee,
stockholder, assign, representative, agent or affiliate of any such person with
respect to any act or omission as long as (i) such person's activities do not
constitute Disabling Conduct and (ii) there has been a determination (a) by a
final decision on the merits by a court or other body of competent jurisdiction
be-fore whom the issue of entitlement to indemnification was brought that such
indemnitee is entitled to indemnification or, (b) in the absence of such a
decision, by (1) a majority vote of a quorum of those Trustees who are neither
"interested persons" of the Company (as defined in Section 2(a)(19) of the
Investment Company Act) nor parties to the proceeding, that the indemnitee is
entitled to indemnification (the "Disinterested Non-Party Trustees"), or (2) if
such quorum is not obtainable or even if obtainable, if such majority so
directs, independent legal counsel in a written opinion concludes that the
indemnitee should be entitled to indemnification (each an "Indemnified Person,"
and collectively, the "Indemnified Persons"). A successful claim for
indemnification could reduce the Company's assets available for distribution to
the shareholders. Notwithstanding the foregoing, with respect to any action,
suit or other proceeding voluntarily prosecuted by any Indemnified Person as
plaintiff, indemnification shall be mandatory only if the prosecution of such
action, suit or other proceeding by such Indemnified Person was authorized by a
majority of the Trustees. All determinations to make advance payments in
connection with the expense of defending any proceeding shall be authorized and
made in accordance with the immediately succeeding paragraph (b) below.
(b) The Company shall make advance payments in connection
with the expenses of defending any action with respect to which indemnification
might be sought hereunder if the Company receives a written affirmation by the
Indemnified Person of the Indemnified Person's good faith belief that the
standards of conduct necessary for indemnification have been met and a written
undertaking to reimburse the Company unless it is subsequently determined that
he is entitled to such indemnification and if a majority of the Trustees
determine that the applicable standards of conduct necessary for
indemnification appear to have been met. In addition, at least one of the
following conditions must be met: (1) the Indemnified Person shall provide
adequate security for his undertaking, (2) the Company shall be insured against
losses arising by reason of any lawful advances, (3) a majority of a quorum of
the Disinterested Non-Party Trustees, or if such quorum is not obtainable or
even if obtainable, if such majority so directs, independent legal counsel,
shall conclude, based on a review of readily available facts (as opposed to a
full trial-type inquiry), that there is substantial reason to believe that the
Indemnified Person ultimately will be found entitled to indemnification or (4)
if there is not a Disinterested Non-Party Trustee, the Indemnified Person
provides the written affirmation referred to above.
(c) The rights accruing to any Indemnified Person under
these provisions shall not exclude any other right to which he may be lawfully
entitled.
(d) Each Indemnified Person shall, in the performance of
its duties, be fully and completely justified and protected with regard to any
act or any failure to act resulting from reliance in good faith upon the books
of account or other records of the Company, upon an opinion of counsel, or upon
reports made to the Company by any of the Company's officers or employees or by
any advisor, administrator, manager, distributor, selected dealer, accountant,
appraiser or other expert or consultant selected with reasonable care by the
Trustees, officers or employees of the Company, regardless of whether such
counsel or other person may also be a Trustee.
11. Term of Agreement; Events Affecting the Investment Manager;
Survival of Certain Terms.
(a) This Agreement shall become effective as of the date
hereof and shall continue until its termination unless sooner terminated by the
Company or Investment Manager as provided herein. This Agreement may be
terminated by the Company at any time, without the payment of any penalty, upon
giving the Investment Manager 60 days' notice (which notice may be waived by
the Investment Manager), provided that such termination by the Company shall be
directed or approved by the vote of a majority of the Trustees of the Company
in office at the time or by the vote of the holders of a majority of the voting
securities of the Company at the time outstanding and entitled to vote, or by
the Investment Manager on 60 days' written notice (which notice may be waived
by the Company). This Agreement will also immediately terminate in the event of
its assignment. As used in this Agreement, the terms "majority of the
outstanding voting securities," "interested person" and "assignment" shall have
the same meanings as such terms are given in the 1940 Act.
(b) Notwithstanding anything herein to the contrary,
Sections 6(c), 7, 9 and 10 of this Agreement shall survive any termination
hereof.
(c) From and after the effective date of termination of
this Agreement, the Investment Manager and its Affiliated Persons shall not be
entitled to compensation for further services hereunder, but shall be paid all
compensation and reimbursement of expenses accrued to the date of termination.
Upon such termination, and upon receipt of payment of all compensation and
reimbursement of expenses owed, the Investment Manager shall as soon as
practicable (and in any event within 90 days after such termination) deliver to
the Company all property (to the extent, if any, that the Investment Manager
has custody thereof) and documents of the Company or otherwise relating to the
Assets of the Company then in the custody of the Investment Manager (although
the Investment Manager may keep copies of such documents for its records). The
Investment Manager agrees to use reasonable efforts to cooperate with any
successor investment manager in the transfer of its responsibilities hereunder,
and will, among other things, provide upon receipt of a written request by such
successor investment manager any information available to it regarding any
Assets of the Company. The Investment Manager agrees that, notwithstanding any
termination, it will reasonably cooperate in any proceeding arising in
connection with this Agreement, any of the Transaction Documents or any
Investment (excluding any such proceeding in which claims are asserted against
the Investment Manager or any Affiliated Person of the Investment Manager) upon
receipt of appropriate indemnification and expense reimbursement.
12. Power of Attorney; Further Assurances.
In addition to the power of attorney granted to the Investment Manager
in Section 1 of this Agreement, the Company hereby makes, constitutes and
appoints the Investment Manager, with full power of substitution, as its true
and lawful agent and attorney-in-fact, with full power and authority in its
name, place and stead, in accordance with the terms of this Agreement (a) to
sign, execute, certify, swear to, acknowledge, deliver, file, receive and
record any and all documents which the Investment Manager reasonably deems
necessary or appropriate in connection with its investment management duties
under this Agreement and as required by the 1940 Act and (b) to (i) subject to
any policies adopted by the Board with respect thereto, exercise in its
discretion any voting or consent rights associated with any securities,
instruments or obligations included in the Company's Assets, (ii) execute
proxies, waivers, consents and other instruments with respect to such
securities, instruments or obligations, (iii) endorse, transfer or deliver such
securities, instruments and obligations and (iv) participate in or consent (or
decline to consent) to any modification, work-out, restructuring, bankruptcy
proceeding, class action, plan of reorganization, merger, combination,
consolidation, liquidation or similar plan or transaction with regard to such
securities, instruments and obligations. To the extent permitted by applicable
law, this grant of power of attorney is irrevocable and coupled with an
interest, and it shall survive and not be affected by the subsequent
dissolution or bankruptcy of the Company; provided that this grant of power of
attorney will expire, and the Investment Manager will cease to have any power
to act as the Company's attorney-in-fact, upon termination of this Agreement in
accordance with its terms. The Company shall execute and deliver to the
Investment Manager all such other powers of attorney, proxies, dividend and
other orders, and all such instruments, as the Investment Manager may
reasonably request for the purpose of enabling the Investment Manager to
exercise the rights and powers which it is entitled to exercise pursuant to
this Agreement. Each of the Investment Manager and the Company shall take such
other actions, and furnish such certificates, opinions and other documents, as
may be reasonably requested by the other party hereto in order to effectuate
the purposes of this Agreement and to facilitate compliance with applicable
laws and regulations and the terms of this Agreement.
13. Amendment of this Agreement.
No provision of this Agreement may be amended, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the amendment, waiver, discharge or termination is
sought. Any amendment of this Agreement shall be subject to the 1940 Act, and
requires majority shareholder approval.
14. Notices.
Unless expressly provided otherwise herein, any notice, request,
direction, demand or other communication required or permitted under this
Agreement shall be in writing and shall be deemed to have been duly given, made
and received if sent by hand or by overnight courier, when personally
delivered, if sent by telecopier, when receipt is confirmed by telephone, or if
sent by registered or certified mail, postage prepaid, return receipt
requested, when actually received if addressed as set forth below:
(a) If to the Company:
Restoration Opportunities Fund
Attn: Xxxxx Xxxxxxxxx
Two Galleria Tower
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) If to the Investment Manager:
Highland Capital Management, L.P.
Attn: R. Xxxxxx Xxxxxxxxx
Two Galleria Tower
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Either party to this Agreement may alter the address to which communications
or copies are to be sent to it by giving notice of such change of address in
conformity with the provisions of this Section 14. Other addresses set forth
in this Section 14 shall be changed only with the consent of the relevant
addressee.
15. Binding Nature of Agreement; Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns as provided herein.
16. Entire Agreement.
This Agreement contains the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof, and supersedes
all prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
17. Costs and Expenses.
The costs and expenses (including the fees and disbursements of
counsel and accountants) incurred in connection with the negotiation,
preparation and execution of this Agreement, and all matters incident thereto,
shall be borne by the Company.
18. Books and Records. In compliance with the requirements of Rule
31a-3 under the Investment Company Act, the Investment Manager hereby agrees
that all records which it maintains for the Company are the property of the
Company and further agrees to surrender promptly to the Company any such
records upon the Company's request. The Investment Manager further agrees to
preserve for the periods prescribed by Rule 31a-2 under the Investment Company
Act the records required to be maintained by Rule 31a-1 under the Investment
Company Act.
19. Titles Not to Affect Interpretation.
The titles of sections contained in this Agreement are for convenience
only, and they neither form a part of this Agreement nor are they to be used in
the construction or interpretation hereof.
20. Provisions Separable.
The provisions of this Agreement are independent of and separable from
each other, and, to the extent permitted by applicable law, no provision shall
be affected or rendered invalid or unenforceable by virtue of the fact that for
any reason any other or others of them may be invalid or unenforceable in whole
or in part.
21. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware and, to the extent inconsistent therewith,
the 1940 Act.
22. Execution in Counterparts.
This Agreement may be executed in separate counterparts, each of which
shall be an original and all of which taken together shall constitute one and
the same instrument.
23. Use of the Name Restoration.
The Investment Manger has consented to the use by the Company of the
name or identifying word "Restoration" in the name of the Company. Such consent
is conditioned upon the employment of the Investment Manager as the investment
advisor to the Company. The name or identifying word "Restoration" may be used
from time to time in other connections and for other purposes by the Investment
Manager and any of its affiliates. The Investment Manager may require the
Company to cease using "Restoration" in the name of the Company if the Company
ceases to employ, for any reason, the Investment Manager, any successor thereto
or any affiliate thereof as investment advisor of the Company.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
HIGHLAND CAPITAL MANAGEMENT, L.P.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx
President
RESTORATION OPPORTUNITIES FUND
By: /s/ R. Xxxxxx Xxxxxxxxx
---------------------------------
R. Xxxxxx Xxxxxxxxx
Trustee
