AMENDED AND RESTATED SERVICING AGREEMENT
THIS AMENDED AND RESTATED SERVICING AGREEMENT (the "Agreement") is
made and entered into as of the 2nd day of March, 2004 by and
between Phoenix/▇▇▇▇▇ Advisers LLC, a Delaware limited liability
company (the "Company") and ▇▇▇▇▇ Consulting LLC, a New York limited
liability company ("▇▇▇▇▇").
WHEREAS pursuant to an Acquisition Agreement
(the "Acquisition Agreement") by and among ▇▇▇▇▇/▇▇▇▇▇▇
Advisers, a New York general partnership, ▇▇▇▇▇ Advisors Inc., a
Delaware corporation and ▇▇▇▇▇ Total Return Advisors, Inc., a
Delaware corporation (collectively, the "Predecessor Company"),
Phoenix Investment Partners, Ltd., a Delaware corporation ("Phoenix")
and the other parties thereto, Phoenix acquired the Predecessor
Company on March 1, 1999 (initially capitalized terms defined in the
Acquisition Agreement and not otherwise defined herein are used
herein with such defined meanings);
WHEREAS prior to the Closing, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "President")
provided certain services to the Predecessor Company, and Phoenix
and the Predecessor Company were desirous of continuing to receive
such services following the Closing, and the President indicated to
Phoenix and the Predecessor Company that he and his designated
research associates(the "Associates") would continue to provide the
Predecessor Company and its Affiliates with such services following
the Closing;
WHEREAS in connection with the foregoing, ▇▇▇▇▇ entered into this
Agreement with the Predecessor Company, dated as of March 1, 1999,
which became effective on the Closing Date for an initial three year
term, and this Agreement was thereafter continued until the date
hereof by the agreement of ▇▇▇▇▇ and the Company (which was the
successor to the Predecessor Company on or about December 31, 1999)
with respect to such continuation;
WHEREAS since the Closing, the Predecessor Company or the Company
has served as the investment adviser with respect to The ▇▇▇▇▇ Fund,
Inc. and The ▇▇▇▇▇ Total Return Fund, Inc. (each, a "Fund" and
collectively "Funds"), closed-end funds traded on the New York Stock
Exchange, and pursuant to this Agreement ▇▇▇▇▇ has provided
investment subadvisory services with respect to each Fund (with this
Agreement having at all relevant times been approved by the board of
directors of each Fund, and having been initially approved by the
shareholders of each Fund, in each such case as an investment
subadvisory agreement with respect to such Fund in accordance with
the requirements of the Investment Company Act of 1940);
WHEREAS, the Company recognizes the importance that the Funds'
portfolio management process reflect the asset allocation techniques
of ▇▇▇▇▇; and
WHEREAS the Company and ▇▇▇▇▇ desire to continue the Servicing
Agreement from and after the date hereof on the terms set forth
herein, and to amend and restate the Servicing Agreement as set forth
herein to provide for an additional Term (as defined herein) and to
reflect the other terms and conditions set forth herein (and this
amendment and restatement has been approved by the board of directors
of each Fund in accordance with the requirements of the Investment
Company Act of 1940 insofar as this Agreement relates to such Fund).
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto, intending to be legally bound, agree
as follows (which amended and restated terms shall supercede in their
entirety the terms set forth in the Servicing Agreement prior to this
amendment and restatement):
1. Services
1.1 During the Term, ▇▇▇▇▇ and the President agree that the President
and the Associates will devote their skill and approximately one-half
of their full working time consistent with the practices of ▇▇▇▇▇
prior to the date hereof, to the business and affairs of the Company
and its Affiliates and to the promotion of its and their interests,
in particular (i) performing asset allocation research and analysis
and providing advice thereon at a level and in a manner consistent
with the practices of ▇▇▇▇▇ and the Company prior to the date hereof,
(ii) playing an active role in collaborating with the Company's
portfolio management team on a frequent basis regarding the
investment advisory services provided by the Company to the Funds in
the Company's capacity as investment adviser to the Funds and, in
particular, advising the Company on the methodology and process
utilized by the Company's portfolio management team for purposes of
selecting individual securities that will be purchased and sold by
the Funds, and actively reviewing the Funds' portfolios with respect
to the individual securities that have been purchased and sold by the
Funds (it being understood that, except to the extent that its
fiduciary duties and/or obligations under its investment advisory
agreement with a Fund may otherwise require, the Company intends to
follow ▇▇▇▇▇'▇ recommendations with respect to the methodology and
process utilized by the Company's portfolio management team for
purposes of selecting individual securities that will be purchased
and sold by the Funds), (iii) the President, together with such of
the Associates as any such board may request, meeting with the boards
of directors of the Funds (in person and/or telephonically) at such
times as they may request (including without limitation attendance
at meetings of such boards of directors, to the extent so requested
by such boards of directors), and participating (in person and/or
telephonically) at the annual and any special meetings of
shareholders of the Funds, (iv) collaborating with the Company on an
active basis with respect to strategic and other Fund-related
matters, and (v) in the event that ▇▇▇▇▇▇▇ ▇▇▇▇ is no longer serving
as the Company's portfolio manager with respect to the Funds for any
reason, the President advising the board of directors of each Fund
with respect to ▇▇▇▇▇'▇ approval or disapproval of such replacement
portfolio manager of the Company with respect to such Fund as is
proposed by the Company to replace ▇▇▇▇▇▇▇ ▇▇▇▇ (the "Services").
The Services will be performed by the President and the Associates in
a manner and at a level consistent with the practices of ▇▇▇▇▇ and
the Company prior to the date hereof.
1.2 The Services will be provided to the Company and its Affiliates
during normal business hours at the offices of the Company in New
York City or at such other times and places as ▇▇▇▇▇ may reasonably
determine, taking into account the nature, exigencies and reasons
for the assistance required.
1.3 For so long as this Agreement remains in effect with respect
to one or both of the Funds, (i) the Company agrees that neither it
nor any of its Affiliates shall, directly or indirectly, employ or
seek to employ any employee of ▇▇▇▇▇ or any of its Affiliates, or any
person who was such an employee of ▇▇▇▇▇ or any of its Affiliates at
any time during the twelve months preceding such action by the
Company or its Affiliates, nor seek to persuade any such employee or
former employee to become employed by any direct or indirect
competitor of ▇▇▇▇▇ or any of its Affiliates, and (ii) ▇▇▇▇▇ and the
President agree that neither they nor any of their respective
Affiliates shall, directly or indirectly, employ or seek to employ
any employee of the Company or any of its Affiliates, or any person
who was such an employee of the Company or any of its Affiliates at
any time during the twelve months preceding such action by ▇▇▇▇▇, the
President or their respective Affiliates, nor seek to persuade any
such employee or former employee to become employed by any direct or
indirect competitor of the Company or any of its Affiliates; provided
that nothing contained in this Section 1.3 shall prohibit employment
advertisements in mass media (or similar general solicitations
available to the public at large and not targeted at particular
individuals); and provided, further, that the restrictions set forth
in this Section 1.3 shall not apply in respect of secretaries or
other persons holding similar responsibilities that are primarily
clerical in nature.
2. Term
2.1 This Agreement shall remain effective from and after the date
hereof until the third anniversary of the date hereof (the "Term") or
such earlier date as provided in Section 2.2; provided, however,
that, with respect to a particular Fund (and Services being performed
by ▇▇▇▇▇ hereunder with respect to such Fund), this Agreement shall
terminate automatically on the first March 1 during the Term (if any)
at which the continuation of this Agreement with respect to such Fund
has not been specifically approved on or prior to such March 1 in
accordance with the requirements of the Investment Company Act of
1940 by (i) a majority of such Fund's outstanding voting securities
or a majority of its board of directors and (ii) a majority of the
directors who are not "interested persons", as defined in the
Investment Company Act of 1940, cast in person at a meeting called
for the purpose of voting on such approval; and provided, further,
that this Agreement shall terminate immediately in full at such time
(as any) as it has been terminated with respect to both Funds.
2.2 The Company may terminate this Agreement immediately in full (i)
for Cause (as defined below) or (ii) in the event of the President's
death or Disability (as defined below). With respect to a particular
Fund, this Agreement (and Services being performed by ▇▇▇▇▇ hereunder
with respect to such Fund) may be terminated at any time (with or
without Cause), without payment of any penalty, by (i) the board of
directors of that Fund, or (ii) by a vote of a majority (as defined
in the Investment Company Act of 1940) of the outstanding voting
securities of that Fund, in either such case upon not less than sixty
(60) day's written notice. This Agreement shall automatically
terminate in full in the event of its assignment, within the meaning
of the Investment Company Act of 1940, unless such automatic
termination shall be prevented by an exemptive order of the
Securities and Exchange Commission, and shall automatically terminate
with respect to a particular Fund (and Services being performed by
▇▇▇▇▇ hereunder with respect to such Fund) upon the termination of
such Fund's investment advisory agreement with the Company.
2.3 Upon termination of this Agreement in full pursuant to Section
2.2 hereof or Section 2.5 hereof, the Company's payment to ▇▇▇▇▇ of
fees earned by ▇▇▇▇▇ under this Agreement to the date of such
termination shall be in full satisfaction of all claims against the
Company under this Agreement. Upon termination of this Agreement
with respect to a particular Fund pursuant to Section 2.2 hereof, the
Company's payment to ▇▇▇▇▇ of fees earned by ▇▇▇▇▇ under this
Agreement with respect to such Fund to the date of such termination
shall be in full satisfaction of all claims against the Company under
this Agreement relating to such termination with respect to such Fund
(provided that, if this Agreement shall also terminate in full as a
result of such termination with respect to such particular Fund, then
this sentence shall not require a separate payment to ▇▇▇▇▇, and the
first sentence of this Section 2.3 shall instead apply to such
termination of this Agreement in full).
2.4 (i) For purposes of this Agreement, "Cause" shall mean a
reasonable determination made by the Chief Executive Officer of
Phoenix that: (a) ▇▇▇▇▇ has willfully neglected its assigned duties
with the Company, which neglect has continued for a period of at
least thirty (30) days after a written notice of such neglect was
delivered to the President specifying the claimed neglect, (b) the
President has been enjoined (other than temporary suspensions of not
more than ninety-one (91) days) by the Securities and Exchange
Commission, the National Association of Securities Dealers, Inc. or
any other industry regulatory authority from working in the
investment advisory or securities industry, (c) the President has
been convicted by a court of competent jurisdiction of, or has
pleaded guilty or nolo contendre to, any felony or misdemeanor
involving an investment or investment-related business, or (d) ▇▇▇▇▇
has engaged in a continuing violation of a material provision of this
Agreement, which violation has continued for a period of at least
thirty (30) days after a written notice of such violation was
delivered to the President specifying the claimed violation.
(ii) For purposes of this Agreement, "Disability" shall mean the
President's inability to perform the Services he is required to
perform under this Agreement by reason of sickness, accident, injury,
illness or any similar event and which condition has existed for at
least 180 consecutive days, or for such shorter periods aggregating
180 days during any twelve month period.
2.5 ▇▇▇▇▇ may terminate this Agreement immediately in full if (a)
the Company has been enjoined (other than temporary suspensions of
not more than ninety-one (91) days) by the Securities and Exchange
Commission, the National Association of Securities Dealers, Inc. or
any other industry regulatory authority from acting as an investment
adviser to the Funds or (b) the Company has engaged in a continuing
violation of a material provision of this Agreement, which violation
has continued for a period of at least thirty (30) days after a
written notice of such violation was delivered to the Company
specifying the claimed violation, or (c) ▇▇▇▇▇ reasonably determines
that, as a result of new regulatory requirements or developments
applicable to persons or entities engaged (or affiliated with those
engaged) in the business of acting as investment advisers to and/or
sponsors of collective investment vehicles that are exempt from
registration under the Investment Company Act of 1940, ▇▇▇▇▇'▇
continued performance of its Services under this Agreement would have
a material adverse effect upon the business of ▇▇▇▇▇'▇ Affiliates.
3. Compensation
3.1 For so long as this Agreement remains in effect with respect to
a Fund, for the Services to be provided by ▇▇▇▇▇ under this Agreement
with respect to such Fund the Company will pay ▇▇▇▇▇ an annual fee
(the "Fees") equal to forty percent (40.0%) of the investment
advisory fees actually received by the Company from such Fund in
respect of investment advisory services performed by the Company for
such Fund (which shall in no event be deemed to include
administration, servicing, distribution or other fees that may be
received by the Company from such Fund); provided, however, that the
aggregate Fees payable by the Company to ▇▇▇▇▇ hereunder in respect
of the twelve-month period ending on March 1, 2005 shall not be less
than $3,000,000 if:
(i) Both Funds remain closed-end investment companies (within the
meaning of the Investment Company Act of 1940) for the entirety of
such 12-month period; provided, however, that, in the event a Fund
ceases to be a closed-end investment company with an effective date
(for such open-ending) prior to March 1, 2005, the minimum Fee
requirement set forth in this Section 3.1 above shall still apply in
respect of such 12-month period, but such $3,000,000 level shall be
adjusted as follows: the $3,000,000 shall be bifurcated between the
Funds in proportion to their respective aggregate net assets as of
the last business day immediately prior to the effective date for
such open-ending, such that (a) the portion of the $3,000,000
relating to the Fund that continues to be a closed-end investment
company will continue to apply in full in respect of such 12-month
period, and (b) the portion of the $3,000,000 relating to the Fund
that ceases to be a closed-end investment company shall no longer
apply for that portion of such 12-month period falling on or after
the effective date of such open-ending (provided that a ratable
portion thereof shall continue to apply in respect of that portion of
such 12-month period falling prior to the effective date of such
open-ending, based upon the number of days elapsed in such 12-month
period falling prior to such effective date);
(ii) ▇▇▇▇▇ continues to provide Services to the Company hereunder
with respect to both Funds for the entirety of such 12-month period;
provided, however, that, in the event ▇▇▇▇▇ ceases to provide
Services to the Company with respect to a Fund prior to March 1,
2005, the minimum Fee requirement set forth in this Section 3.1
above shall still apply in respect of such 12-month period, but such
$3,000,000 level shall be adjusted as follows: the $3,000,000 shall
be bifurcated between the Funds in proportion to their respective
aggregate net assets as of the last business day immediately prior
to the cessation of ▇▇▇▇▇'▇ Services provided to the Company with
respect to such Fund, such that (a) the portion of the $3,000,000
relating to the Fund with respect to which ▇▇▇▇▇ continues to provide
Services hereunder will continue to apply in full in respect of such
12-month period, and (b) the portion of the $3,000,000 relating to
the Fund with respect to which ▇▇▇▇▇ ceases to provide Services
hereunder shall no longer apply for that portion of such 12-month
period falling on or after the effective date of such cessation of
▇▇▇▇▇'▇ Services hereunder with respect to such Fund (provided that a
ratable portion thereof shall continue to apply in respect of that
portion of such 12-month period falling prior to the effective date
of such cessation of Services hereunder, based upon the number of
days elapsed in such 12-month period falling prior to such effective
date); and
(iii) The Company's effective advisory fee rate (after taking into
account any waivers, reimbursements or other reductions) remains
0.85% per annum with respect to The ▇▇▇▇▇ Fund, Inc. and 0.70% with
respect to The ▇▇▇▇▇ Total Return Fund, Inc. for the entirety of such
12-month period; provided, however, that, in the event the Company's
effective advisory fee rate with respect to a Fund is reduced from
such stated percentage prior to March 1, 2005 (other than as a result
of any reductions offered by the Company to the Funds primarily for
reasons unrelated to these Funds in particular), the minimum Fee
requirement set forth in this proviso shall still apply in respect of
such 12-month period, but such $3,000,000 dollar level shall be
ratably reduced (based upon the ratio of gross advisory fees that
the Company would have received from such Fund absent such reduction
in effective fee rate to the gross advisory fees that the Company
in fact receives after taking into account such reduction) to reflect
that portion of such 12-month period for which the Company's
effective advisory fee rate with respect to such Fund is less than
such stated percentage;
and provided, further, that, in the event the Company's effective
advisory fee rate with respect to a Fund (after taking into account
any waivers, reimbursements or other reductions) is reduced in
respect of the 12-month period ending on March 1, 2006 to below 0.85%
per annum, in the case of The ▇▇▇▇▇ Fund, Inc., or 0.70% per annum,
in the case of The ▇▇▇▇▇ Total Return Fund, Inc., in either such case
as a result of any reduction thereto offered by the Company to such
Fund primarily for reasons unrelated to such Fund in particular, then
for any portion of such 12-month period during which ▇▇▇▇▇ provided
Services to the Company hereunder with respect to such Fund whose
effective advisory fee rate was so reduced, the Company will pay
▇▇▇▇▇ an increased percentage of the investment advisory fees
actually received by the Company from such Fund such that ▇▇▇▇▇
receives the same dollar amount of Fees from the Company for such
period during which ▇▇▇▇▇ performed Services for the Company
hereunder with respect to such Fund as ▇▇▇▇▇ would have received
from the Company hereunder with respect to such Services absent such
reduction in effective fee rate offered by the Company to such Fund.
The Fees with respect to a Fund shall be paid by the Company to ▇▇▇▇▇
not later than five (5) business days following the Company's receipt
of the related investment advisory fees from such Fund.
3.2 The Company shall provide or share with ▇▇▇▇▇ research
information, benefits and services, as defined in Section 28(e) of
the Securities Exchange Act of 1934, that results, from brokerage
transactions implemented by the Company for the benefit of the Funds.
3.3 The Company shall not have any liability with respect to the
compensation of employees retained by ▇▇▇▇▇ or by any affiliated
entities.
3.4 Subject to the Company's compliance with the provisions of
Section 2.3 hereof, upon termination of this Agreement for any
reason, the Company shall have no further obligations under this
Agreement, but ▇▇▇▇▇ shall continue to be bound by Section 4 and the
Company shall continue to be bound by Section 5 hereof.
4. Confidentiality of ▇▇▇▇▇
4.1 ▇▇▇▇▇ shall not at any time during the period of its engagement
with the Company hereunder or after the termination thereof directly
or indirectly divulge, furnish, use, publish or make accessible to
any person or entity any Confidential Information (as hereinafter
defined) except in connection with the performance of its duties
hereunder. Any records of Confidential Information prepared by ▇▇▇▇▇
or which come into its possession during the term of this Agreement
are and remain the property of the Company or its Affiliates, as the
case may be, and upon termination of the engagement all such records
and copies thereof shall be either left with or returned to such
entity. Confidential Information may be shared among the President
and Associates or other employees of entities controlled by the
President on a need to know basis for purposes of providing the
Services to the Company and its Affiliates hereunder. Such
Associates and any other employees shall be informed of the
confidential nature of such Confidential Information, the President
shall direct such Associates and any other employees to treat such
information confidentially and the President will be responsible for
any breach of this Section 4.1 by himself and by any persons to whom
the President provides any Confidential Information. Notwithstanding
anything contained herein to the contrary, the Company acknowledges
that services overlapping or similar to the Services provided by
▇▇▇▇▇, the President and the Associates hereunder are also performed
on behalf of the Affiliates of ▇▇▇▇▇ and such Services are often not
exclusively performed by ▇▇▇▇▇, the President and the Associates for
the Company. Consequently, the work product resulting from the
Services is often generated on behalf of both the Company and its
Affiliates and the Affiliates of ▇▇▇▇▇ and is shared among the
employees of these entities (the "Shared Work Product"). The Company
further acknowledges that the Confidential Information that generates
such Shared Work Product may become known to the employees of
▇▇▇▇▇'▇ Affiliates. The Company hereby agrees that the disclosure of
Confidential Information to the employees of the ▇▇▇▇▇ Affiliates who
shall be deemed employees covered by the fourth sentence of this
Section 4.1, to the extent such disclosure is necessary to generate
any Shared Work Product, and the use of Shared Work Product by the
employees of the ▇▇▇▇▇ Affiliates, shall in no event be deemed a
breach of this Agreement.
4.2 The term "Confidential Information" includes, but is not limited
to, the following items, whether existing now or created in the
future and whether or not subject to trade secret or other statutory
protection: (a) all knowledge or information concerning the business,
operations and assets of the Company and its Affiliates which is not
readily available to the public, such as: internal operating
procedures; investment strategies; sales data and customer and client
lists; financial plans, projections and reports; and investment
company programs, plans and products; (b) all property owned,
licensed and/or developed for the Company and/or its Affiliates or
any of their respective clients and not readily available to the
public, such as computer systems, programs and software devices,
including information about the design, methodology and documentation
therefor; (c) information about or personal to the Company's and/or
its Affiliates' clients; (d) information, materials, products or
other tangible or intangible assets in the Company's and/or its
Affiliates' possession or under any of their control which is
proprietary to, or confidential to or about, any other person or
entity; and (e) records and repositories of all of the foregoing,
in whatever form maintained.
The foregoing notwithstanding, the following shall not be considered
Confidential Information: (aa) general skills and experience gained
by providing service to the Company; (bb) information publicly
available or generally known within the Company's trade or industry;
(cc) information independently developed by the president or the
Associates other than in the course of the performance of their
duties which are exclusive to the Company hereunder; and (dd)
information which becomes available to the President or the
Associates on a non-confidential basis from sources other than the
Company or its Affiliates, provided, the President or the Associates
do not know or have reason to know that such sources are prohibited
by contractual, legal or fiduciary obligation from transmitting the
information. Failure to ▇▇▇▇ any material or information
"confidential" shall not affect the confidential nature thereof. All
the terms of this Section 4 shall survive the termination of this
Agreement. The obligations hereunder shall be in addition to, and
not in limitation of, any other obligations of confidentiality the
President or the Associates may have to the Company.
4.3 At any time when so requested, and upon termination of the
engagement under this Agreement for any reason whatsoever and
irrespective of whether such termination is voluntary on ▇▇▇▇▇'▇ part
or not, ▇▇▇▇▇ will deliver to the Company all information in its
possession (whether or not Confidential Information) pertaining
exclusively to the Company or any of its Affiliates and, to the
extent any such information is Shared Work Product, shall provide
copies to the Company with the understanding that ▇▇▇▇▇ and its
Affiliates shall also retain copies of such information.
5. Confidentiality of the Company
5.1 The Company and its Affiliates and their respective employees
shall not at any time during the period of ▇▇▇▇▇'▇ engagement with
the Company hereunder or after the termination thereof directly or
indirectly divulge, furnish, use, publish or make accessible to any
person or entity any ▇▇▇▇▇ Confidential Information (as hereinafter
defined). It is expressly understood that Shared Work Product may be
shared among the Company and its Affiliates and their respective
employees. The Company and its Affiliates and their respective
employees shall be informed of the confidential nature of the ▇▇▇▇▇
Confidential Information, the Company shall direct such employees to
treat such information confidentially and the Company will be
responsible for any breach of this Section 5.1 by its employees.
5.2 The term "▇▇▇▇▇ Confidential Information" includes, but is not
limited to, the following items, whether existing now or created in
the future and whether or not subject to trade secret or other
statutory protection: (a) all knowledge or information concerning the
business, operations and assets of ▇▇▇▇▇ and its Affiliates which is
not readily available to the public, such as: internal operating
procedures; investment strategies; sales data and customer and client
lists; financial plans, projections and reports; and investment
company programs, plans and products; (b) all property owned,
licensed and/or developed for the ▇▇▇▇▇ and/or its Affiliates or any
of their respective clients and not readily available to the public,
such as computer systems, programs and software devices, including
information about the design, methodology and documentation therefor;
(c) information about or personal to ▇▇▇▇▇'▇ and/or its Affiliates'
clients; (d) information, materials, products or other tangible or
intangible assets in ▇▇▇▇▇'▇ and/or its Affiliates' possession or
under any of their control which is proprietary to, or confidential
to or about, any other person or entity; and (e) records and
repositories of all of the foregoing, in whatever form maintained.
The foregoing notwithstanding, the following shall not be considered
▇▇▇▇▇ Confidential Information: (aa) general skills and experience
gained by providing service to the Company and its Affiliates; (bb)
information publicly available, or generally known within ▇▇▇▇▇'▇
trade or industry, (cc) information independently developed by the
Company and its Affiliates and their respective employees; (dd)
information which becomes available to the Company and its Affiliates
and their respective employees on a non-confidential basis from
sources other than ▇▇▇▇▇, and (ee) information, materials, property
or rights acquired by Phoenix or any Affiliate thereof pursuant to
the Acquisition Agreement or other written agreements contemplated
thereby, provided the Company and its Affiliates and their respective
employees do not know or have reason to know that such sources are
prohibited by contractual, legal or fiduciary obligation from
transmitting the information. All the terms of this Section 5 shall
survive the termination of this Agreement,
6. Ownership of Documents
All memoranda, papers, letters, notes, notebooks and all copies
thereof relating exclusively to the business or affairs of the
Company that are generated by ▇▇▇▇▇ or that come. into its
possession, in each case in connection with its performance of
Services to the Company under this Agreement, shall be held by ▇▇▇▇▇
as the Company property and shall be delivered by ▇▇▇▇▇ to the
Company as the Company may request. To the extent any such
memoranda, papers, letters, notes and notebooks are the product
of ▇▇▇▇▇ Confidential Information or are Shared Work Product,
the Company understands and agrees that ▇▇▇▇▇ and its Affiliates
shall also retain copies of such documentation and information.
7. Prior Negotiations and Agreements
This Agreement contains the complete agreement concerning the
servicing arrangement between the parties. This Agreement may only
be altered, amended or rescinded by a duly executed written agreement
delivered by each of the parties hereto.
8. Jurisdiction
This Agreement shall be construed in accordance with and governed
by the laws of the State of New York governing contracts entered into
and to be performed entirely within New York and both parties consent
to the jurisdiction of the courts of New York.
9, Performance Waivers
Waiver of performance of any obligation by either party shall not
constitute a waiver of performance of any other obligations or
constitute future waiver of the same obligation.
10. Severability
If any section, subsection, clause or sentence of this Agreement
shall be deemed illegal, invalid or unenforceable under any
applicable law, actually applied by any court of competent
jurisdiction, such illegality, invalidity or unenforceability shall
not affect the legality, validity and enforceability of this
Agreement or any other section, subsection, clause or sentence
thereof. Where, however, the provisions of any applicable law may be
waived, they are hereby waived by the parties to the full extent
permitted by such law to the end that this Agreement shall be a valid
and binding agreement enforceable in accordance with its terms.
11. Assignment
This Agreement shall inure to the benefit of and be binding upon
the Company and its successors (whether direct or indirect, by
purchase, merger, consolidation or otherwise) and assigns, and upon
▇▇▇▇▇ and its successors and assigns (whether direct or indirect, by
purchase, merger, consolidation or otherwise). Except as provided in
Section 2.2, this Agreement shall not be assignable by ▇▇▇▇▇ other
than with the express written consent of the Company, which shall not
be unreasonably denied. The reorganization of ▇▇▇▇▇ and its
affiliated entities, such that the Services of the President and the
Associates are provided through an affiliated entity, shall not
constitute a breach, assignment or termination of this Agreement by ▇▇▇▇▇.
12. Notices
All notices under this Agreement shall be in writing and shall be
deemed to have been given at the time when mailed by registered or
certified mail, addressed to (i) the address below stated, in the
case of notices to ▇▇▇▇▇, or (ii) both of the addresses below stated,
in the case of notices to the Company, in either such case of the
party to which notice is given, or to such changed address or
addresses (as applicable) as such party may have fixed by notice:
To the Company: Phoenix/▇▇▇▇▇ Advisers LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
With such notice also sent to:
Phoenix Investment Partners, Ltd.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Executive Vice President and General Counsel
To ▇▇▇▇▇: ▇▇▇▇▇ Consulting LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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With such notice also sent to:
KMZ Rosenman
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Provided, however, that any notice of change of address shall be
effective only upon receipt.
13. Miscellaneous
The President hereby represents and warrants that this Agreement
(i) is valid, binding and enforceable in accordance with its terms
and (ii) does not conflict with any other agreement to which he is a
party, including any agreement with the Affiliated Investment
Partnership Management Companies and the related investment
partnerships and Watermark Securities, Inc.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PHOENIX/▇▇▇▇▇ ADVISERS LLC
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇ CONSULTING LLC
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
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075753-0001-08390-NY03.2335157.6 08/30/04 10:51 AM
075753-0001-08390-NY03.2335157.6 08/30/04 10:51 AM