INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 4th day of November, 1996, by and between
OpCap Advisors, a Delaware general partnership (the "Adviser"), and Endeavor
Investment Advisers, a California general partnership (the "Manager").
WHEREAS, the Manager has been organized to serve as investment
manager and administrator of Endeavor Series Trust (the "Trust"), a
Massachusetts business trust which has filed a registration statement under
the Investment Company Act of 1940, as amended (the "1940 Act") and the
Securities Act of 1933 (the "Registration Statement"); and
WHEREAS, the Trust is comprised of several separate investment
portfolios, one of which is the Opportunity Value Portfolio (the "Portfolio");
and
WHEREAS, the Manager desires to avail itself of the services,
information, advice, assistance and facilities of an investment adviser to
assist the Manager in performing services for the Portfolio; and
WHEREAS, the Adviser is registered under the Investment Advisers
Act of 1940, as amended, and is engaged in the business of rendering
investment advisory services to investment companies and desires to provide
such services to the Manager;
NOW, THEREFORE, in consideration of the terms and conditions
hereinafter set forth, it is agreed as follows:
1. Employment of the Adviser. The Manager hereby employs the
Adviser to manage the investment and reinvestment of the assets of the
Portfolio, subject to the control and direction of the Trust's Board of
Trustees, for the period and on the terms hereinafter set forth. The Adviser
hereby accepts such employment and agrees during such period to render the
services and to assume the obligations herein set forth for the compensation
herein provided. The Adviser shall for all purposes herein be deemed to be an
independent contractor and shall, except as expressly provided or authorized
(whether herein or otherwise), have no authority to act for or represent the
Manager, the Portfolio or the Trust in any way.
2. Obligations of and Services to be Provided by
the Adviser. The Adviser undertakes to provide the following
services and to assume the following obligations:
a. The Adviser shall manage the investment and reinvestment
of the portfolio assets of the Portfolio, all without prior consultation with
the Manager, subject to and in accordance with the respective investment
objectives and policies of the Portfolio set forth in the Trust's
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Registration Statement, as such Registration Statement may be amended from
time to time, and any written instructions which the Manager or the Trust's
Board of Trustees may issue from time-to-time in accordance therewith. In
pursuance of the foregoing, the Adviser shall make all determinations with
respect to the purchase and sale of portfolio securities and shall take such
action necessary to implement the same. The Adviser shall render regular
reports to the Trust's Board of Trustees and the Manager concerning the
investment activities of the Portfolio.
b. To the extent provided in the Trust's Registration
Statement, as such Registration Statement may be amended from time to time,
the Adviser shall, in the name of the Portfolio, place orders for the
execution of portfolio transactions with or through such brokers, dealers or
banks as it may select including affiliates of the Adviser and, complying with
Section 28(e) of the Securities Exchange Act of 1934, may pay a commission on
transactions in excess of the amount of commission another broker-dealer would
have charged.
c. In connection with the placement of orders for the
execution of the portfolio transactions of the Portfolio, the Adviser shall
create and maintain all necessary records pertaining to the purchase and sale
of securities by the Adviser on behalf of the Portfolio in accordance with all
applicable laws, rules and regulations, including but not limited to records
required by Section 31(a) of the 1940 Act. All records shall be the property
of the Trust and shall be available for inspection and use by the Securities
and Exchange Commission ("SEC"), the Trust, the Manager or any person retained
by the Trust. Where applicable, such records shall be maintained by the
Adviser for the periods and in the places required by Rule 31a-2 under the
1940 Act.
d. The Adviser shall bear its expenses of
providing services pursuant to this Agreement.
3. Compensation of the Adviser. In consideration of services
rendered pursuant to this Agreement, the Manager will pay the Adviser a fee at
the annual rate of the value of the Portfolio's average daily net assets set
forth in Schedule A hereto. Such fee shall be accrued daily and paid monthly
as soon as practicable after the end of each month. If the Adviser shall serve
for less than the whole of any month, the foregoing compensation shall be
prorated. For the purpose of determining fees payable to the Adviser, the
value of the Portfolio's net assets shall be computed at the times and in the
manner specified in the Trust's Registration Statement.
4. Activities of the Adviser. The services of the
Adviser hereunder are not to be deemed exclusive, and the
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Adviser shall be free to render similar services to others and to engage in
other activities, so long as the services rendered hereunder are not impaired.
5. Use of Names. The Manager shall not use the name of the Adviser
or its parent, Xxxxxxxxxxx Capital, in any prospectus, sales literature or
other material relating to the Trust in any manner not approved prior thereto
by the Adviser; provided, however, that the Adviser shall approve all uses of
its name and that of its parent which merely refer in accurate terms to its
appointment hereunder or which are required by the SEC or a state securities
commission; and, provided, further, that in no event shall such approval be
unreasonably withheld. The Adviser shall not use the name of the Trust or the
Manager in any material relating to the Adviser in any manner not approved
prior thereto by the Manager; provided, however, that the Manager shall
approve all uses of its or the Trust's name which merely refer in accurate
terms to the appointment of the Adviser hereunder or which are required by the
SEC or a state securities commission; and, provided further, that in no event
shall such approval be unreasonably withheld.
6. Liability of the Adviser. Absent willful misfeasance, bad
faith, gross negligence, or reckless disregard of obligations or duties
hereunder on the part of the Adviser, the Adviser shall not be liable for any
act or omission in the course of, or connected with, rendering services
hereunder or for any losses that may be sustained in the purchase, holding or
sale of any security. Nothing herein shall constitute a waiver of any rights
or remedies which the Trust may have under any federal or state securities
laws.
7. Limitation of Trust's Liability. The Adviser acknowledges that
it has received notice of and accepts the limitations upon the Trust's
liability set forth in its Agreement and Declaration of Trust. The Adviser
agrees that any of the Trust's obligations shall be limited to the assets of
the Portfolio and that the Adviser shall not seek satisfaction of any such
obligation from the shareholders of the Trust nor from any Trust officer,
employee or agent of the Trust.
8. Renewal, Termination and Amendment. This Agreement shall
continue in effect, unless sooner terminated as hereinafter provided, for a
period of two years from the date hereof and shall continue in full force and
effect for successive periods of one year thereafter, but only so long as each
such continuance as to the Portfolio is specifically approved at least
annually by vote of the holders of a majority of the outstanding voting
securities of the Portfolio or by vote of a majority of the Trust's Board of
Trustees; and
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further provided that such continuance is also approved annually by the vote
of a majority of the Trustees who are not parties to this Agreement or
interested persons of any such party, cast in person at a meeting called for
the purpose of voting on such approval. This Agreement may be terminated as to
the Portfolio at any time, without payment of any penalty, by the Trust's
Board of Trustees, by the Manager, or by a vote of the majority of the
outstanding voting securities of the Portfolio upon 60 days' prior written
notice to the Adviser, or by the Adviser upon 150 days' prior written notice
to the Manager, or upon such shorter notice as may be mutually agreed upon.
This Agreement shall terminate automatically and immediately upon termination
of the Management Agreement dated November 23, 1992 between the Manager and
the Trust. This Agreement shall terminate automatically and immediately in the
event of its assignment. The terms "assignment" and "vote of a majority of the
outstanding voting securities" shall have the meaning set forth for such terms
in the 1940 Act. This Agreement may be amended at any time by the Adviser and
the Manager, subject to approval by the Trust's Board of Trustees and, if
required by applicable SEC rules and regulations, a vote of a majority of the
Portfolio's outstanding voting securities.
9. Confidential Relationship. Any information and
advice furnished by either party to this Agreement to the
other shall be treated as confidential and shall not be
disclosed to third parties except as required by law.
10. Severability. If any provision of this
Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
11. Miscellaneous. This Agreement constitutes the full and
complete agreement of the parties hereto with respect to the subject matter
hereof. Each party agrees to perform such further actions and execute such
further documents as are necessary to effectuate the purposes hereof. This
Agreement shall be construed and enforced in accordance with and governed by
the laws of the State of California. The captions in this Agreement are
included for convenience only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed in several counterparts, all of which together shall
for all purposes constitute one Agreement, binding on all the parties.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the date first written above.
ENDEAVOR INVESTMENT ADVISERS
BY: Endeavor Management Co.,
Managing Partner
BY: Xxxxxxx X. XxXxxxxxxx, C.E.O.
------------------------------
Authorized Officer
OPCAP ADVISORS
BY: Xxxxxxx X. Xxxxx
------------------------------
Authorized Officer
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SCHEDULE A
Opportunity Value
Portfolio .40% of average daily
net assets; provided,
however
that no fee shall be
payable to the
Adviser until the
earlier of the events
specified in (a) or
(b) below:
(a) The net assets of
the Portfolio equal
or exceed
$25,000,000;
(b) The Adviser notifies the Manager
that after a specified date, which
date shall not be earlier than 6
months from the date of this
Investment Advisory Agreement, the
.40% fee will be due and payable.
