INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 23rd day of July, 1999, by and between OpCap
Advisors, a Delaware general partnership (the "Adviser"), and Endeavor
Management Co., a California corporation (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,
as amended (the "Registration Statement"); and
WHEREAS, the Trust is comprised of several separate investment
portfolios, one of which is the Endeavor Value Equity 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 other institutional clients 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:
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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 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
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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 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 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.
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.
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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
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
July 22, 1999 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
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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.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
ENDEAVOR MANAGEMENT CO.
BY: /s/ Xxxxxxx X. XxXxxxxxxx
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Authorized Officer
OPCAP ADVISORS
BY: /s/ Xxxxxxx Xxxxxx
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Authorized Officer
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SCHEDULE A
Endeavor Value Equity
Portfolio .40% of average daily net
assets
