INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT (this "Agreement"), made this 3rd
day of November, 2000, 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 as listed on Exhibit A, as amended from time to time (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, the Fund(s).
(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. Subject to any expense limitation provisions
set forth on Exhibit A, 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). 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, 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 Prospectus and
shall be equal to the amount set forth on Exhibit A, 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 two years 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.
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
________________________________________
By: Xxxxx Xxxxx, President, Chairperson,
Treasurer and Trustee
EVEREST FUNDS MANAGEMENT, LLC
_______________________________________
By: Xxxxx Xxxxx, President
