AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
THIS AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT (this "Agreement"),
made this 30th day of October, 2001, by and between EVEREST FUNDS, a Delaware
Business Trust (the "Trust"), and EVEREST FUNDS MANAGEMENT, LLC, a Delaware
limited liability company (the "Adviser").
W I T N E S S E T H:
WHEREAS, the Trust is an open-end investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act") and the Trust is
authorized to create separate series, each with its own separate investment
portfolio (each a "Fund" and collectively the "Funds"); and
WHEREAS, the Adviser is a registered investment adviser, engaged in the
business of rendering investment advisory services.
NOW THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Investment Advisory and Management Services. The Trust hereby engages
the Adviser, and the Adviser hereby agrees to act, as investment adviser for,
and to manage the affairs, business, and the investment of the assets of, each
of the Fund(s) of the Trust on whose behalf the Trust executes an Exhibit to
this Agreement.
(a) The investment of the assets of the Fund(s) shall at all times be
subject to the applicable provisions of the Agreement and Declaration of
Trust of the Trust (the "Declaration"), the Bylaws of the Trust (the
"Bylaws"), the Prospectus and the Statement of Additional Information of
the Fund(s), as from time to time in effect (collectively the
"Prospectus"), and shall conform to the investment objective and policies
of the Fund(s) as set forth in the Prospectus and as interpreted from time
to time by the Board of Trustees of the Trust (the "Board"). Within the
framework of the investment objective and policies and restrictions of the
Fund(s), the Adviser shall have the sole and exclusive responsibility for
the management of a Fund's portfolio and the making and execution of all
investment decisions for the Fund(s). The Adviser shall report to the Board
regularly at such times and in such detail as the Board may from time to
time determine to be appropriate, in order to permit the Board to determine
the adherence of the Adviser to the investment policies of the Fund(s).
(b) The Adviser shall obtain and provide investment research and
supervise a Fund's investments and conduct a continuous program of
investment, evaluation, and if appropriate, sale and reinvestment of a
Fund's assets. The Adviser shall furnish to the Fund(s) such statistical
information, with respect to the investments which the Fund(s) may hold or
contemplate purchasing, as the Fund(s) may reasonably request. The Fund(s)
shall be informed of important developments materially affecting their
portfolios and shall expect the Adviser, on its own initiative, to furnish
to the Fund(s) from time to time such information as it may believe
appropriate for this purpose.
(c) In addition, the Adviser shall supply office facilities, clerical
staff, and stationery and office supplies; prepare reports to a Fund's
shareholders, tax returns, reports to and filings with the Securities and
Exchange Commission ("SEC") and state blue sky authorities; and generally
assist in all aspects of a Fund's operations.
2. Use of Sub-Advisers. In providing the services and assuming the
obligations set forth herein, in connection with any investment portfolios of
the Fund(s), the Adviser may at its expense employ one or more sub-advisers, and
may enter into such service agreements as the Adviser deems appropriate in
connection with the performance of its duties and obligations hereunder.
Reference herein to the duties and responsibilities of the Adviser shall include
any sub-adviser employed by the Adviser to the extent that the Adviser shall
delegate such duties and responsibilities to any such sub-adviser. Any agreement
between the Adviser and a sub-adviser shall be subject to the approval of the
Trust, its Board, and the owners of interests issued by any portfolio affected
thereby, as required by the 1940 Act, and any such sub-adviser shall at all
times be subject to the direction of the Board of the Trust or any officer of
the Trust acting pursuant to the authority of the Board. The Adviser shall
perform ongoing due diligence oversight of any such sub-adviser in order to
assure continuing quality of performance by said sub-adviser.
3. Allocation of Expenses. All costs and expenses (other than those
specifically referred to herein as being borne by the Adviser) incurred in the
operation of each of the Fund(s) shall be borne by the respective Fund(s) listed
on the applicable Exhibit for the Fund(s). These expenses include, but are not
limited to, all expenses incurred in the operation of the Fund(s) and any public
offering of their shares, including, among others, interest, taxes, brokerage
fees and commissions, fees, if any, of the trustees who are not employees of the
Adviser, or any of their affiliates, expenses of directors' and shareholders'
meetings, including the cost of printing and mailing proxies, expenses of
insurance premiums for fidelity and other coverage, expenses of redemption of
Fund shares, expenses of issue and sale of Fund shares, expenses of printing and
mailing stock certificates representing shares of a Fund, association membership
dues, advertising promotional expenses in connection with the distribution of
Fund's shares, including paying for prospectuses for new shareholders, charges
of custodian, transfer agent, dividend disbursing agent, accounting services
agent, investor servicing agent, and bookkeeping, auditing, and legal expenses.
A Fund will also pay the fees and bear the expense of registering and
maintaining the registration of the Fund and its shares with the SEC and
registering or qualifying its shares under state or other securities laws and
the expense of preparing and mailing prospectuses and reports to shareholders.
4. Books and Records. The Adviser hereby acknowledges that all records
necessary in the operation of the Fund(s), including records pertaining to its
shareholders and investments, are the property of the Trust, and in the event
that a transfer of management or investment advisory services to someone other
than the Adviser should ever occur, the Adviser will promptly, and at its own
cost, take all steps necessary to segregate such records and deliver them to the
Trust. The Adviser further agrees to preserve for the periods prescribed by Rule
31a-2 promulgated under the Investment Company Act of 1940, as amended (the
"1940 Act") any such records required to be maintained by Rule 31a-1 promulgated
under the 1940 Act.
5. Compensation. In payment for the investment advisory services to be
rendered by the Adviser hereunder, each Fund shall pay to the Adviser a monthly
fee equal to the amount and in the manner set forth on the applicable Exhibit
for the Fund(s), which fee shall be paid to the Adviser not later than the fifth
business day following the end of each month in which said services were
rendered. Said monthly fee shall be based on the average of the net asset values
of all of the issued and outstanding shares of each Fund as determined as of the
close of each business day of the month pursuant to the Declaration, Bylaws and
the applicable Fund's Prospectus, expressed as an annual rate of such Fund's
average daily net assets. The fee for the period from the date of the
commencement of the initial public sale of each Fund's shares to the end of the
month during which such sale shall have been commenced shall be pro-rated
according to the proportion which such period bears to the full monthly period,
and upon any termination of this Agreement before the end of any month, the fee
for such part of a month shall be pro-rated according to the proportion which
such period bears to the full monthly period and shall be payable upon the date
of termination of this Agreement.
6. Third Parties. The Board understands that the Adviser shall be free to
render services to others similar to those rendered under this Agreement or of a
different nature except as such services may conflict with the services to be
rendered or the duties to be assumed hereunder.
7. Standard of Care and Limitation of Liability. The Adviser shall exercise
its best judgment and shall act in good faith in rendering the services to be
provided to the Trust hereunder and the Trust agrees as an inducement to its
undertaking the same that the Adviser shall not be liable hereunder for any
error of judgment or mistake of law or for any loss suffered by a Fund or its
shareholders in connection with the matters to which this Agreement relates,
provided that nothing herein shall be deemed to protect or purport to protect it
against any liability to a Fund or to its shareholders to which the Adviser
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties hereunder, or by reason of its
reckless disregard of its obligations and duties hereunder. Nothing in this
paragraph shall be deemed a limitation or waiver of any obligation or duty that
may not by law be limited or waived.
8. Effective Date. The effective date of this Agreement shall be the date
of execution or, if later, the date the initial capital to a series of the Trust
is first provided (the "Effective Date.")
9. Duration and Termination. Wherever referred to in this Agreement, the
vote or approval of the holders of a majority of the outstanding voting
securities of a Fund shall mean (a) the vote of 67% or more of such securities
if the holders of more than 50% of such securities are present in person or by
proxy or (b) the vote of more than 50% of all outstanding securities, whichever
is the lesser.
(a) Unless sooner terminated as hereinafter provided, this Agreement
shall continue in effect for one year from the Effective Date and from year
to year thereafter, but only so long as such continuance is specifically
approved at least annually by the Board or by the vote of the holders of a
majority of the outstanding voting securities of the Trust; provided that
in either event the continuance also is approved by a majority of the Board
who are not "interested persons" of the Adviser or the Fund(s), as defined
by the provisions of the 1940 Act.
(b) Notwithstanding the foregoing, this Agreement may be terminated at
any time without the payment of any penalty by the vote of the Board or by
the vote of the holders of a majority of the outstanding voting securities
of the Trust, or by the Adviser, upon 60 days' written notice to the other
party. This Agreement shall automatically terminate in the event of its
assignment as such term is defined by the 1940 Act.
10. Amendment of this Agreement. No material amendment to this Agreement shall
be effective until approved by vote of the holders of a majority of the
outstanding voting securities of a Fund.
11. Notice. Any notice under this Agreement shall be in writing, addressed,
delivered or mailed, postage prepaid, to the other party at such address as
such other party may designate in writing for receipt of such notice.
12. Miscellaneous. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect. 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 be binding upon and
shall inure to the benefit of the parties hereto. In the event of any
inconsistency between the terms of this Agreement and the terms of any
Exhibit attached hereto, the terms of such Exhibit shall control.
13. Applicable Law. This Agreement shall be construed in accordance with the
laws of the State of Nebraska.
IN WITNESS WHEREOF, the Trust and the Adviser have caused this
Agreement to be executed as of the day and year first written above.
EVEREST FUNDS
/s/ Xxxxx Xxxxx
------------------------------------------
By: Xxxxx Xxxxx, President, Chairperson,
Treasurer and Trustee
EVEREST FUNDS MANAGEMENT, LLC
/s/ Xxxxx Xxxxx
------------------------------------------
By: Xxxxx Xxxxx, President
EXHIBIT A
to the
Investment Advisory Agreement
EVEREST3 FUND
Separate Series of Everest Funds
For all services rendered by the Adviser hereunder, the Trust shall pay the
Adviser, on behalf of the above-named Fund, and the Adviser agrees to accept as
full compensation for all services rendered hereunder, an annual investment
advisory fee equal to 0.50% of the average daily net assets of the Fund.
The Adviser:
EVEREST FUNDS MANAGEMENT, LLC
By: /s/ Xxxxx Xxxxx
---------------------------
Xxxxx Xxxxx, President
The Trust:
EVEREST FUNDS
By: /s/ Xxxxx Xxxxx
---------------------------
Xxxxx Xxxxx, Chairperson, President
Treasurer and Trustee
EXHIBIT B
to the
Investment Advisory Agreement
EVEREST AMERICA FUND
Separate Series of Everest Funds
For all services rendered by the Adviser hereunder, the Trust shall pay the
Adviser, on behalf of the above-named Fund, and the Adviser agrees to accept as
full compensation for all services rendered hereunder, an annual investment
advisory fee equal to 1.00% of the average daily net assets of the Fund.
The Adviser:
EVEREST FUNDS MANAGEMENT, LLC
By: /s/ Xxxxx Xxxxx
---------------------------
Xxxxx Xxxxx, President
The Trust:
EVEREST FUNDS
By: /s/ Xxxxx Xxxxx
---------------------------
Xxxxx Xxxxx, Chairperson, President
Treasurer and Trustee
