INVESTMENT MANAGEMENT AGREEMENT ENTERED INTO BETWEEN THE CUSHING MLP TOTAL RETURN FUND AND SWANK ENERGY INCOME ADVISORS, LP
EXHIBIT 2(g)
INVESTMENT MANAGEMENT AGREEMENT
ENTERED INTO BETWEEN
THE XXXXXXX MLP TOTAL RETURN FUND
AND
SWANK ENERGY INCOME ADVISORS, LP
ENTERED INTO BETWEEN
THE XXXXXXX MLP TOTAL RETURN FUND
AND
SWANK ENERGY INCOME ADVISORS, LP
This Investment Management Agreement (the “Agreement”) is entered into as of August 6th, 2007
by and between The Xxxxxxx MLP Total Return Fund (the “Fund”), a statutory trust duly organized and
existing under the laws of the State of Delaware, and Swank Energy Income Advisors, LP, a limited
partnership duly organized and existing under the laws of the State of Texas (the “Investment
Adviser”).
RECITALS:
The Fund is a closed-end management investment company registered under the Investment Company
Act of 1940 (the “1940 Act”); and
The Investment Adviser is engaged principally in providing management and investment advisory
services and is registered as an investment adviser under the Investment Advisers Act of 1940 (the
“Advisers Act”); and
The Investment Adviser is willing to provide management and investment advisory services to
the Fund on the terms and conditions set out below;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set out in this
Agreement, the Fund and the Investment Adviser agree as follows:
1. Investment Description; Appointment
(a) Investment Description. The Fund will invest and reinvest its assets in
accordance with the investment objective, policies and limitations specified in the prospectus (the
“Prospectus”) filed with the Securities and Exchange Commission (the “SEC”) as part of the Fund’s
registration statement on Form N-2 (the “Registration Statement”), as the Fund may periodically
amend such investment objective, policies and limitations.
(b) Appointment of Investment Adviser. The Fund will employ the Investment Adviser
to act as the investment adviser of the Fund and to furnish the management and investment advisory
services described below, subject to the policies of, review by and overall control of the Board of
Trustees of the Fund (the “Board of Trustees”), for the period and on the terms and conditions set
out in this Agreement. The Investment Adviser accepts such employment and agrees during such
period, at its own expense, to render, or arrange for the rendering of, such services and to assume
the obligations set out in this Agreement for the compensation provided for in this Agreement. The
Investment Adviser for all purposes in this Agreement will be deemed to be an independent
contractor and, unless otherwise expressly provided or authorized
in this Agreement, will have no authority to act for or represent the Fund in any way or
otherwise be deemed an agent of the Fund.
2. Duties of the Investment Adviser
(a) Management Services.
| (1) | The Investment Adviser will perform, or arrange for its affiliates to perform, the management services necessary for the operation of the Fund. The Investment Adviser will provide the Fund with office space, facilities, equipment and necessary personnel (which may be its own) and such other services as the Investment Adviser, subject to review by the Board of Trustees, from time to time will determine to be necessary or useful to perform its obligations under this Agreement. The Investment Adviser, also on behalf of the Fund, will conduct affairs with custodians, depositories, transfer agents, pricing agents, dividend disbursing agents, other shareholder servicing agents, accountants, attorneys, underwriters, brokers and dealers, corporate fiduciaries, insurers, banks and such other persons in any such other capacity deemed to be necessary or desirable. | ||
| (2) | The Investment Adviser will, subject to the supervision of the Board of Trustees, perform various services for the Fund, including but not limited to: (i) preparing all general shareholder communications, including shareholder reports; (ii) conducting shareholder relations; (iii) maintaining the Fund’s existence and its records; (iv) during such times as shares are publicly offered, maintaining the registration and qualification of the Fund’s shares under federal and state law; (v) investigating the development of and developing and implementing, if appropriate, management and shareholder services designed to enhance the value or convenience of the Fund as an investment vehicle; (vi) overseeing the determination and publication of the Fund’s net asset value in accordance with the Fund’s policy as adopted from time to time by the Board of Trustees; (vii) overseeing the preparation and filing of the Fund’s federal, state and local income tax returns and any other required tax returns; (viii) reviewing the appropriateness of and arranging for payment of the Fund’s expenses; (ix) preparing (or overseeing the preparation) for review and approval by officers of the Fund financial information for the Fund’s semi-annual and annual reports, proxy statements and other communications with shareholders required or otherwise to be sent to Fund shareholders, and arrange for the printing and dissemination of such reports and communications to shareholders; (x) preparing (or overseeing the preparation) for review by an officer of the Fund the Fund’s periodic financial reports required to be filed with the SEC on Form N-SAR, N-CSR and such other reports, forms and filings, as may be mutually agreed upon; (xi) preparing reports relating to the business and affairs of the Fund as may be mutually agreed upon and not otherwise appropriately prepared by the Fund’s custodian, counsel or auditors; (xii) preparing (or overseeing the preparation of) such information and reports as may be required by any stock exchange or exchanges on which the Fund’s shares are listed; (xiii) making such reports and recommendations to the Board of Trustees concerning the performance of the independent accountants as the Board of Trustees may reasonably request or deems |
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| appropriate; (xiv) making such reports and recommendations to the Board of Trustees concerning the performance and fees of the Fund’s custodian, transfer agent, administrator and dividend disbursing agent as the Board of Trustees may reasonably request or deems appropriate; (xv) overseeing and reviewing calculations of fees paid to the Fund’s service providers; (xvi) reviewing implementation of any share purchase programs authorized by the Board of Trustees; (xvii) determining the amounts available for distribution as dividends and distributions to be paid by the Fund to its shareholders; (xviii) preparing and arranging for the printing of dividend notices to shareholders; (xix) providing the Fund’s dividend disbursing agent and custodian with such information as is required for such parties to effect the payment of dividends and distributions and to implement the Fund’s dividend reinvestment plan; (xx) preparing such information and reports as may be required by any party from which the Fund borrows funds; (xxi) providing such assistance to the custodian and the Fund’s counsel and auditors as generally may be required to properly carry on the business and operations of the Fund; and (xxii) assisting in the preparation and filing of Forms 3, 4, and 5 pursuant to Section 16 of the Securities Exchange Act of 1934 (the “1934 Act”), and Section 30(f) of the 1940 Act for the officers and Trustees of the Fund, such filings to be based on information provided by those persons. | |||
| (3) | The Investment Adviser will authorize and permit any of its principals, officers and employees who may be elected or appointed as trustees or officers of the Fund to serve in the capacities in which they are elected or appointed. Services to be furnished by the Investment Adviser under this Agreement may be furnished through the medium of any of such principals, officers, or employees. The Investment Adviser generally will monitor the Fund’s compliance with investment policies and restrictions as set out in filings made by the Fund under the federal securities laws. The Investment Adviser will make reports to the Board of Trustees of its performance of obligations under this Agreement and furnish advice and recommendations with respect to such other aspects of the business and affairs of the Fund as the Fund will determine to be desirable. |
(b) Investment Advisory Services. Subject to the supervision, direction and approval
of the Board of Trustees, the Investment Adviser will conduct a continual program of investment,
evaluation, sale, and reinvestment of the Fund’s assets. The Investment Adviser is authorized, in
its sole discretion, to: (i) obtain and evaluate pertinent economic, financial, and other
information affecting the economy generally and certain investment assets as such information
relates to securities or other financial instruments that are purchased for or considered for
purchase by the Fund; (ii) make investment decisions for the Fund; (iii) place purchase and sale
orders for portfolio transactions on behalf of the Fund, lend securities and manage otherwise
uninvested cash assets of the Fund; (iv) arrange for the pricing of Fund securities; (v) execute
account documentation, agreements, contracts and other documents as may be requested by brokers,
dealers, counterparties and other persons in connection with the Investment Adviser’s management of
the assets of the Fund (in such respect, and only for this limited purpose or to the extent
expressly stated elsewhere in this Agreement, the Investment Adviser will act as the Fund’s agent
and attorney-in-fact); (vi) employ professional portfolio managers and securities analysts who
provide research services to the Fund; and (vii) make decisions with respect to the
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use by the Fund of borrowing for leverage or other investment purposes. The Investment
Adviser will in general take such action as is appropriate to effectively manage the Fund’s
investment practices. In addition:
(1) The Investment Adviser will maintain and preserve the records specified in Section
12 of this Agreement and any other records related to the Fund’s transactions as are required
under any applicable state or federal securities law or regulation including the 1940 Act, the
1934 Act, and the Advisers Act.
(2) The Investment Adviser will comply with any procedures provided from time to time to
the Investment Adviser by the Fund. The Investment Adviser will notify the Fund as soon as
reasonably practicable upon detection of any material breach of such procedures.
(3) The Investment Adviser will maintain a written code of ethics (the “Code of Ethics”)
pursuant to Rule 17j-1 under the 1940 Act, a copy of which will be provided to the Fund, and
will institute procedures reasonably necessary to prevent Access Persons (as defined in Rule
17j-1) from violating its Code of Ethics. The Investment Adviser will follow such Code of
Ethics in performing its services under this Agreement.
(4) The Investment Adviser will manage the Fund’s assets in accordance with the Fund’s
investment objective and policies as adopted by the Fund from time to time. The Investment
Adviser also will manage the investments of the Fund in a manner consistent with any and all
applicable investment restrictions (including diversification requirements) contained in the
1940 Act and the rules under the 1940 Act, any SEC order issued to the Fund, and any
applicable state securities law or regulation. The Investment Adviser will process and
respond to class action lawsuits relating to the portfolio securities of the Fund and any
proceeds to the Fund from such lawsuits.
3. Information and Reports
(a) The Investment Adviser will keep the Fund informed of developments relating to the
Investment Adviser’s duties as investment adviser of which the Investment Adviser has, or should
have, knowledge that would materially affect the Fund. In this regard, the Investment Adviser will
provide the Fund and its officers with such periodic reports concerning the obligations the
Investment Adviser has assumed under this Agreement as the Fund may from time to time reasonably
request. The Investment Adviser will certify quarterly to the Fund that it and its “Advisory
Persons” (as defined in Rule 17j-1 under the 0000 Xxx) have complied materially with the
requirements of Rule 17j-1 during the previous quarter or, if not, explain what the Investment
Adviser has done to seek to ensure such compliance in the future. The Investment Adviser will
annually furnish to the Fund a written report, which complies with the requirements of Rule 17j-1,
concerning the Investment Adviser’s Code of Ethics. Upon written request of the Fund with respect
to violations of the Code of Ethics directly affecting the Fund, the Investment Adviser will permit
representatives of the Fund to examine reports (or summaries of the reports) required to be made by
Rule 17j-1(d)(1) relating to enforcement of the Code of Ethics.
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(b) The Investment Adviser will provide the Fund with any information reasonably requested
regarding the Investment Adviser’s management of the Fund required for any shareholder report or
amended registration statement to be filed by the Fund with the SEC.
(c) The Investment Adviser will notify the Fund of any additional, removed or substituted
general partner of the Investment Adviser within a reasonable time of such addition, removal or
substitution.
4. Standard of Care
The Investment Adviser will exercise its best judgment, act in good faith, use reasonable care
and act in a manner consistent with applicable federal and state laws and regulations in rendering
the services it agrees to provide under this Agreement. The Investment Adviser will not be liable
for any error of judgment or mistake of law or for any loss arising out of any investment or for
any act or omission in the management of the Fund, except for willful misfeasance, bad faith or
gross negligence in the performance of its duties, or by reason of reckless disregard of its
obligations and duties under this Agreement. As used in this Section 4, the term “Investment
Adviser” will include any affiliates of the Investment Adviser performing services for the Fund
contemplated by this Agreement and principals, officers and employees of the Investment Adviser and
of such affiliates.
5. Investment Adviser’s Duties Regarding Fund Transactions
(a) Placement of Orders. The Investment Adviser will take all actions that it
considers necessary to implement the investment policies of the Fund, and, in particular, to place
all orders for the purchase or sale of securities or other investments for the Fund with brokers or
dealers the Investment Adviser, in its sole discretion, selects. To that end, the Investment
Adviser is authorized as the Fund’s agent to give instructions to the Fund’s custodian as to
deliveries of securities or other investments and payments of cash for the Fund’s account. In
connection with the selection of brokers or dealers and the placement of purchase and sale orders,
the Investment Adviser is subject to the supervision of the Board of Trustees and is directed at
all times to seek to obtain best execution and price within the policy guidelines determined by the
Board of Trustees, as may be amended from time to time, and is subject to provisions (b), (c) and
(d) of this Section 5.
(b) Selection of Brokers and Dealers. To the extent permitted by the policy
guidelines adopted by the Fund, in the selection of brokers and dealers to execute portfolio
transactions, the Investment Adviser is authorized to consider not only the available prices and
rates of brokerage commissions, but also other relevant factors, which may include, without
limitation: the execution capabilities of the brokers and dealers; the research, custody, and other
services provided by the brokers and dealers that the Investment Adviser believes will enhance its
general portfolio management capabilities; the size of the transaction; the difficulty of
execution; the operational facilities of these brokers and dealers; the risk to a broker or dealer
of positioning a block of securities; and the overall quality of brokerage and research services
provided by the brokers and dealers. In connection with the foregoing, the Investment Adviser is
specifically authorized to pay those brokers and dealers who provide brokerage and research
services to the
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Investment Adviser a higher commission than that charged by other brokers and dealers if the
Investment Adviser determines in good faith that the amount of the commission is reasonable in
relation to the value of the services in terms of either the particular transaction or in terms of
the Investment Adviser’s overall responsibilities with respect to the Fund and to any other client
accounts or portfolios that the Investment Adviser advises.
(c) Soft Dollar Arrangements. On an ongoing basis, but not less often than annually,
the Investment Adviser will identify and provide a written description to the Board of Trustees of
all “soft dollar” arrangements that the Investment Adviser maintains with respect to the Fund or
with brokers or dealers that execute transactions for the Fund, and of all research and other
services provided to the Investment Adviser by a broker or dealer (whether prepared by such broker
or dealer or by a third party) as a result, in whole or in part, of the direction of Fund
transactions to the broker or dealer.
(d) Aggregated Transactions. On occasions when the Investment Adviser deems the
purchase or sale of a security or other financial instrument to be in the best interests of both
the Fund and other client accounts or portfolios that the Investment Adviser manages, the
Investment Adviser is authorized, but not required, to aggregate purchase and sale orders for
securities or other financial instruments held (or to be held) by the Fund with similar orders
being made on the same day for other client accounts or portfolios that the Investment Adviser
manages. When an order is so aggregated, the Investment Adviser may allocate the recommendations
or transactions among all accounts and portfolios for whom the recommendation is made or the
transaction is effected on a basis that the Investment Adviser reasonably considers equitable and
consistent with its fiduciary obligations to the Fund and its other clients, subject at all times
to the allocation policies and procedures of the Fund. The Investment Adviser and the Fund
recognize that in some cases this procedure may adversely affect the size of the position
obtainable for the Fund.
6. Compensation
For the services rendered, the facilities furnished and the expenses assumed by the Investment
Adviser under this Agreement, the Fund will pay to the Investment Adviser at the end of each
calendar month a management fee at the annual rate of 1.25% of the Fund’s Average Weekly Managed
Assets. “Average Weekly Managed Assets” with respect to a particular month means the average of
the values of each weekly calculation of the Managed Assets of the Fund that takes place as of any
date during that month. “Managed Assets” means the total assets of the Fund, minus all accrued
expenses incurred in the normal course of operations other than liabilities or obligations
attributable to investment leverage, including, without limitation, investment leverage obtained
through (i) indebtedness of any type (including, without limitation, borrowing through a credit
facility or the issuance of debt securities), (ii) the issuance of preferred stock or other similar
preference securities and/or (iii) the reinvestment of collateral received for securities loaned in
accordance with the Fund’s investment objective and policies. To the extent applicable, the Fund
and the Investment Adviser understand and acknowledge that the liquidation preference of any
outstanding preferred stock (other than accumulated dividends) is not considered a liability in
determining the Fund’s Average Weekly Managed Assets. The management fee for the period from the
Effective Date (defined in Section 10(a)) of this
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Agreement to the end of the month during which the Effective Date occurs will be prorated
according to the proportion that such period bears to the full monthly period. Upon any
termination of this Agreement before the end of a month, the management fee for such part of that
month will be prorated according to the proportion that such period bears to the full monthly
period and will be payable upon the date of termination of this Agreement. For the purpose of
determining management fees payable to the Investment Adviser, the value of the Fund’s Managed
Assets will be computed at the times and in the manner specified from time to time by the Board of
Trustees.
7. Expenses
(a) The Investment Adviser. Except as may otherwise be provided in Section 7(b) of
this Agreement, the Investment Adviser will: (i) provide the staff and personnel necessary to
perform its obligations under this Agreement, assume and pay or cause to be paid all expenses
incurred in connection with the maintenance of such staff and personnel, and, at its own expense,
provide the office space, facilities, equipment and necessary personnel that it is obligated to
provide under this Agreement; and (ii) pay, or cause affiliates to pay, compensation of all
officers of the Fund and all Trustees of the Fund who are “interested persons” of the Fund (as
defined in the 1940 Act).
(b) The Fund. The Fund will bear all other expenses to be incurred in its operation,
including, but not limited to: (i) interest and taxes; (ii) brokerage commissions and other costs
in connection with the purchase or sale of securities and other investment instruments; (iii) fees
and expenses of the Fund’s trustees who are not “interested persons” of the Fund, including
reimbursement for all of their out-of-pocket expenses related to attendance at Board of Trustees or
committee meetings; (iv) legal and audit expenses; (v) custodian, administrative, fund accounting,
registrar, transfer agent and dividend disbursing agent fees and expenses; (vi) fees and expenses
related to the registration and qualification of the Fund and the Fund’s shares for distribution
under state and federal securities laws; (vii) expenses of printing and mailing reports and notices
and proxy material to shareholders of the Fund; (viii) all other expenses incidental to holding
meetings of the Fund’s shareholders, including proxy solicitations in connection with such
meetings; (ix) insurance premiums for fidelity bond, directors and officers/errors and omissions
insurance policies, and other coverage; (x) management fees; (xi) expenses of typesetting for
printing prospectuses and, as applicable, statements of additional information and supplements to
those documents; (xii) expenses of printing and mailing prospectuses and, as applicable, statements
of additional information and supplements to those documents; and (xiii) such non-recurring or
extraordinary expenses as may arise, including those relating to actions, suits or proceedings to
which the Fund is a party and legal obligations pursuant to which the Fund may have to indemnify
the Fund’s trustees, officers, employees and/or agents with respect to these actions, suits or
proceedings. If the Investment Adviser or any of its affiliates provides accounting services to
the Fund, the Fund will reimburse the Investment Adviser and its affiliates for their costs in
providing such accounting services to the Fund using a methodology for determining costs approved
by the Board of Trustees.
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8. Services to Other Companies or Accounts
The Fund understands that the Investment Adviser and its affiliates now act, will continue to
act and may act in the future as investment manager, adviser, general partner or managing member to
fiduciary and other managed accounts, and as an investment manager or adviser to other investment
companies, including, but not limited to, offshore entities or private accounts. The Fund has no
objection to the Investment Adviser and its affiliates so acting, so long as, whenever the Fund and
one or more other investment companies or accounts managed or advised by the Investment Adviser and
its affiliates have available funds for investment, investments suitable and appropriate for each
will be allocated in accordance with a formula reasonably believed to be equitable to each such
company and account and in accordance with the Fund’s allocation policies and procedures as adopted
by the Fund from time to time. The Fund recognizes that in some cases this procedure may adversely
affect the size of the position obtainable for the Fund. The Fund understands that the persons
employed by the Investment Adviser to assist in the performance of the Investment Adviser’s duties
under this Agreement may not devote their full time to such service, and that nothing contained in
this Agreement will be deemed to limit or restrict the right of the Investment Adviser to engage in
and devote time and attention to other businesses or to render services of whatever kind or nature.
This Agreement will not in any way limit or restrict the Investment Adviser or any of its
affiliates, principals, officers, employees, or agents from buying, selling or trading any
securities or other investment instruments for its or their own account or for the account of
others for whom it or they may be acting, so long as such activities do not adversely affect or
otherwise impair the performance by the Investment Adviser of its duties and obligations under this
Agreement.
9. Custody
Nothing in this Agreement will require the Investment Adviser to take or receive physical
possession of cash, securities, or other investments of the Fund.
10. Term of Agreement; Termination of Agreement; Amendment of Agreement
(a) Term. This Agreement will become effective upon the acceptance into the Fund of
investment moneys other than seed capital from the Investment Adviser or its affiliate (the
“Effective Date”), and, unless terminated in accordance with its terms, will continue for an
initial two-year term and after that initial two-year term so long as such continuance is
specifically approved at least annually as required by the 1940 Act.
(b) Termination. This Agreement may be terminated, without penalty, (i) by the Board
of Trustees or by vote of holders of a majority of the outstanding shares of the Fund upon sixty
(60) days’ prior written notice to the Investment Adviser, (ii) by the Investment Adviser upon
sixty (60) days’ prior written notice to the Fund, or (iii) by Investment Adviser upon sixty (60)
days’ prior written notice to the Fund. This Agreement also will terminate automatically in the
event of its “assignment,” as defined in the 1940 Act and the rules under the 1940 Act, except that
to the extent consistent with the Advisers Act and the 1940 Act, without the notice to or consent
of the Fund, the Investment Adviser may be reconstituted or reorganized into any other form of
business entity.
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(c) Amendment. This Agreement may be amended in writing by mutual consent and in
conformity with the requirements of the 1940 Act and the rules under the 1940 Act.
11. Cooperation with Regulatory Authorities or Other Actions
The parties to this Agreement each agree to cooperate in a reasonable manner with each other
in the event that any of them should become involved in a legal, administrative, judicial or
regulatory action, claim, or suit as a result of performing its obligations under this Agreement.
12. Records
(a) Maintenance of Records. The Investment Adviser undertakes and agrees to
maintain, in the form and for the period required by Rule 31a-2 under the 1940 Act, all records
relating to the Fund’s investments that are required to be maintained by the Fund pursuant to the
1940 Act with respect to the Investment Adviser’s responsibilities under this Agreement for the
Fund (the “Fund’s Books and Records”).
(b) Ownership of Records. The Investment Adviser agrees that the Fund’s Books and
Records are the Fund’s property and agrees to surrender promptly to the Fund the Fund’s Books and
Records upon the request of the Fund. The Investment Adviser may, however, retain copies of the
records at its own cost. The Fund’s Books and Records will be made available, within two (2)
business days of a written request, to the Fund’s accountants or auditors during regular business
hours at the Investment Adviser’s offices. The Fund or its authorized representatives will have
the right to copy any records in the Investment Adviser’s possession that pertain to the Fund.
These books, records, information, or reports will be made available to properly authorized
government representatives consistent with state and federal law and/or regulations. In the event
of the termination of this Agreement, the Fund’s Books and Records will be returned to the Fund.
The Investment Adviser agrees that the policies and procedures it has established for managing the
Fund, including, but not limited to, all policies and procedures designed to ensure compliance with
federal and state regulations governing the adviser/client relationship and management and
operation of the Fund, will be made available for inspection by the Fund or its authorized
representatives upon reasonable written request within two (2) business days.
13. Conflicts with Fund’s Governing Documents and Applicable Laws
Nothing contained in this Agreement will be deemed to require the Fund to take any action
contrary to the Fund s Amended and Restated Agreement and Declaration of Trust or By-laws, as they
may be amended and/or restated from time to time, or any applicable statute or regulation, or to
relieve or deprive the Board of Trustees of its responsibility for and control of the conduct of
the affairs of the Fund.
14. Survival
All representations and warranties made by the Investment Adviser and the Fund in this
Agreement will survive for the duration of this Agreement and the parties to this Agreement will
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notify each other in writing immediately upon becoming aware, but in no event later than five
(5) days after becoming aware, that any of the foregoing representations and warranties are no
longer true.
15. Governing Law
This Agreement will be governed by, construed under and interpreted and enforced in accordance
with the laws of the state of New York, without regard to principles of conflicts of laws.
16. Severability
If any provision of this Agreement is held or made invalid by a court decision, statute, rule,
or otherwise, the remainder of this Agreement will not be affected as a result. As used in this
Agreement, terms will have the same meaning as such terms have in the 1940 Act. In the event that
the effect of a requirement of the federal securities laws reflected in any provision of this
Agreement is made less restrictive by a rule, regulation or order of the SEC, whether of special or
general application, such provision may be deemed to incorporate the effect of such rule,
regulation or order. This Agreement may be signed in counterpart.
17. Definitions
The terms “assignment,” “affiliated person,” and “interested person,” when used in this
Agreement, will have the respective meanings specified in Section 2(a) of the 1940 Act and the
rules under the 1940 Act. The term “majority of the outstanding shares” as used in this Agreement
means the lesser of (a) sixty-seven percent (67%) or more of the voting shares present at a meeting
if more than fifty percent (50%) of these voting shares are present or represented by proxy, or (b)
more than fifty percent (50%) of the outstanding voting shares.
18. Limitation of Liability of the Fund and the Shareholders
None of the Trustees, officers, agents or shareholders of the Fund will be personally liable
under this Agreement. The name “The Xxxxxxx MLP Total Return Fund” is the designation of the Fund
for the time being under the Amended and Restated Agreement and Declaration of Trust and all
persons dealing with the Fund must look solely to the property of the Fund for the enforcement of
any claims against the Fund, as none of the Trustees, officers, agents or shareholders assume any
personal liability for obligations entered into on behalf of the Fund.
19. Use of Name
The Fund may use any name that includes the word “Xxxxxxx” or “Swank” only for so long as this
Agreement or any other agreement between the Investment Adviser or any other affiliate of the
Investment Adviser and the Fund or any extension, renewal or amendment of this Agreement or such
other agreement remains in effect, including any similar agreement with any organization that
succeeds to the Investment Adviser’s business as investment adviser. At such time as such an
agreement is no longer be in effect, the Fund will (to the extent that it lawfully
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can) cease to use such name or any other name indicating that it is advised by or otherwise
connected with the Investment Adviser or any organization that has succeeded to the Investment
Adviser’s business.
20. Counterparts
This Agreement may be executed in one or more counterparts, each of which will be deemed an
original, and all of such counterparts together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties to this Agreement have executed and delivered this Agreement
as of the date first above written.
| THE XXXXXXX MLP TOTAL RETURN FUND | ||||||||
| By: | /s/ Xxxx X. Xxxxxxx | |||||||
| Name: Xxxx X. Xxxxxxx | ||||||||
| Title: Secretary and Chief Financial Officer | ||||||||
| SWANK ENERGY INCOME ADVISORS, LP | ||||||||
| By: SWANK CAPITAL, LLC | ||||||||
| Title: General Partner | ||||||||
| By: | /s/ Xxxxx X. Xxxxx
|
|||||||
| Name: Xxxxx X. Xxxxx | ||||||||
| Title: Manager | ||||||||
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