INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 1st day of November, 2002, by and between ACP FUNDS
TRUST, a Delaware statutory trust (the "Trust"), and ASCENDANT CAPITAL PARTNERS,
LLC, a Delaware limited liability company (the "Investment Manager").
WHEREAS, the Trust is registered as a non-diversified, closed-end series
management investment company under the Investment Company Act of 1940, as
amended (the "Investment Company Act");
WHEREAS, the Trust has retained PFPC, Inc. (the "Administrator") to
provide administration of the Trust's operations, subject to the control of the
Board of Trustees; and
WHEREAS, the Trust desires to retain the Investment Manager to render
investment management services with respect to the series set forth in Schedule
A attached hereto and such other series as the Trust and the Investment Manager
may agree upon (the "Funds"), and the Investment Manager is willing to render
such services.
NOW, THEREFORE, in consideration of mutual covenants herein contained, the
parties hereto agree as follows:
1. DUTIES OF INVESTMENT MANAGER. The Trust employs the Investment
Manager to manage the investment and reinvestment of the assets of
the Trust, and to continuously review, supervise and (where
appropriate) administer the investment program of the Trust, to
determine in its discretion (where appropriate) the investments to
be purchased or sold, to provide the Administrator and the Trust
with records concerning the Investment Manager's activities which
the Trust is required to maintain, and to render regular reports to
the Administrator and to the Trust's officers and Trustees
concerning the Investment Manager's discharge of the foregoing
responsibilities. The retention of a sub-adviser by the Investment
Manager shall not relieve the Investment Manager of its
responsibilities under this Agreement.
The Investment Manager shall discharge the foregoing
responsibilities subject to the control of the Board of Trustees of
the Trust and in compliance with such policies as the Trustees may
from time to time establish, and in compliance with the objectives,
policies, and limitations of each Fund as set forth in its Private
Placement Memorandum ("PPM"), Statement of Additional Information
and Declaration of Trust, as amended from time to time, and
applicable laws and regulations.
The Investment Manager accepts such employment and agrees, at its
own expense, to render the services and to provide the office space,
furnishings and equipment and the personnel (including any
sub-advisers) required by it to perform the services on the terms
and for the compensation provided herein. The Investment Manager
will not, however, pay for the cost of securities,
commodities, and other investments (including brokerage commissions
and other transaction charges, if any) purchased or sold for the
Trust.
2. TRUST TRANSACTIONS. The Investment Manager is authorized to select
the brokers or dealers that will execute the purchases and sales of
a Fund's investments and is directed to use its best efforts to
obtain the best net results as described from time to time in the
Fund's PPM and Statement of Additional Information. The Investment
Manager will promptly communicate to the Administrator and to the
officers and the Trustees of the Trust such information relating to
the Trust's investment transactions as they may reasonably request.
It is understood that the Investment Manager will not be deemed to
have acted unlawfully, or to have breached a fiduciary duty to the
Trust or be in breach of any obligation owing to the Trust under
this Agreement, or otherwise, by reason of its having directed a
securities transaction on behalf of a Fund to a broker-dealer in
compliance with the provisions of Section 28(e) of the Securities
Exchange Act of 1934 or as described from time to time by the Fund's
PPM and Statement of Additional Information.
3. COMPENSATION OF THE INVESTMENT MANAGER. The Investment Manager will
not be entitled to receive any management fees in conjunction with
its provision of services as provided in Sections 1 and 2 of this
Agreement.
4. OTHER EXPENSES. The Investment Manager shall pay all expenses of
printing and mailing reports, PPMs, Statements of Additional
Information, and sales literature relating to the solicitation of
prospective shareholders. The Trust shall pay all expenses of
mailing to existing shareholders PPMs, Statements of Additional
Information, proxy solicitation material and shareholder reports.
5. EXCESS EXPENSES. If the expenses for the Trust for any fiscal year
(including fees and other amounts payable to the Investment Manager,
but excluding interest, taxes, brokerage costs, litigation, and
other extraordinary costs) as calculated every business day would
exceed the expense limitations imposed on investment companies by
any applicable statute or regulatory authority of any jurisdiction
in which shares of the Trust are qualified for offer and sale, the
Investment Manager shall bear such excess cost.
Payment of expenses by the Investment Manager pursuant to this
Section 5 shall be settled on a monthly basis (subject to fiscal
year end reconciliation) by the Investment Manager.
6. REPORTS. The Trust and the Investment Manager agree to furnish to
each other, if applicable, current PPMs, proxy statements, reports
to shareholders, certified copies of their financial statements, and
such other information with regard to their affairs as each may
reasonably request.
7. STATUS OF INVESTMENT MANAGER. The services of the Investment Manager
to the Trust are not to be deemed exclusive, and the Investment
Manager shall be free to render similar services to others so long
as its services to the Trust are not impaired thereby. The
Investment Manager shall be deemed to be an independent contractor
and shall, unless otherwise expressly provided or authorized, have
no authority to act for or represent the Trust in any way or
otherwise be deemed an agent of the Trust.
8. CERTAIN RECORDS. Any records required to be maintained and preserved
pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated
under the Investment Company Act which are prepared or maintained by
the Investment Manager on behalf of the Trust are the property of
the Trust and will be surrendered promptly to the Trust on request.
9. LIMITATION OF LIABILITY OF INVESTMENT MANAGER. The duties of the
Investment Manager shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted
against the Investment Manager hereunder. The Investment Manager
shall 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 carrying out its duties hereunder, except a loss
resulting from willful misfeasance, bad faith or gross negligence in
the performance of its duties, or by reason of reckless disregard of
its obligations and duties hereunder, except as may otherwise be
provided under provisions of applicable state law or Federal
securities law which cannot be waived or modified hereby. (As used
in this Paragraph 9, the term "Investment Manager" shall include
directors, officers, employees and other corporate agents of the
Investment Manager as well as the limited liability company itself).
10. PERMISSIBLE INTERESTS. Trustees, agents, and shareholders of the
Trust are or may be interested in the Investment Manager (or any
successor thereof) as directors, partners, officers, or members, or
otherwise; directors, partners, officers, agents, and members of the
Investment Manager are or may be interested in the Trust as
Trustees, Members or otherwise; and the Investment Manager (or any
successor) is or may be interested in the Trust as a shareholder or
otherwise. In addition, brokerage transactions for the Trust may be
effected through affiliates of the Investment Manager if approved by
the Board of Trustees, subject to the rules and regulations of the
Securities and Exchange Commission.
11. LICENSE OF INVESTMENT MANAGER'S NAME. The Investment Manager hereby
agrees to grant a license to the Trust for use of its name in the
names of the Trust and the Funds for the term of this Agreement and
such license shall terminate upon termination of this Agreement.
12. DURATION AND TERMINATION. This Agreement, unless sooner terminated
as provided herein, shall remain in effect until two years from date
of execution, and thereafter, for periods of one year so long as
such continuance thereafter is
specifically approved at least annually (a) by the vote of a
majority of those Trustees of the Trust 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, and (b)
by the Trustees of the Trust or by vote of a majority of the
outstanding voting securities of the Trust; provided, however, that
if the Shareholders of the Trust fail to approve the Agreement as
provided herein, the Investment Manager may continue to serve
hereunder in the manner and to the extent permitted by the
Investment Company Act and rules and regulations thereunder. The
foregoing requirement that continuance of this Agreement be
"specifically approved at least annually" shall be construed in a
manner consistent with the Investment Company Act and the rules and
regulations thereunder.
This Agreement may be terminated at any time, without the payment of
any penalty by vote of a majority of the Trustees of the Trust or by
vote of a majority of the outstanding voting securities of the Trust
on not less than 30 days nor more than 60 days written notice to the
Investment Manager, or by the Investment Manager at any time without
the payment of any penalty, on 90 days written notice to the Trust.
This Agreement will automatically and immediately terminate in the
event of its assignment. Any notice under this Agreement shall be
given in writing, addressed and delivered, or mailed postpaid, to
the other party at any office of such party.
As used in this Section 12, the terms "assignment", "interested
persons", and a "vote of a majority of the outstanding voting
securities" shall have the respective meanings set forth in the
Investment Company Act and the rules and regulations thereunder;
subject to such exemptions as may be granted by the Securities and
Exchange Commission under said Act.
13. NOTICE. Any notice required or permitted to be given by either party
to the other shall be deemed sufficient if sent by registered or
certified mail, postage prepaid, addressed by the party giving
notice to the other party at the last address furnished by the other
party to the party giving notice: if to the Trust, 0000 Xxxxxxxxx
Xxxxx, Xxxxxx, XX 00000, Attention: President, and if to the
Investment Manager at 0000 Xxxxxxxxx Xxxxx, Xxxxxx, XX 00000,
Attention: President.
14. 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.
15. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Delaware and the applicable provisions of
the Investment Company Act. To the extent that the applicable laws
of the State of Delaware, or any of the provisions herein, conflict
with the applicable provisions of the Investment Company Act, the
latter shall control.
A copy of the Certificate of Trust of the Trust is on file with the Secretary of
the State of Delaware, and notice is hereby given that this instrument is
executed on behalf of the Trustees of the Trust as Trustees, and are not binding
upon any of the Trustees, officers, or shareholders of the Trust individually
but binding only upon the assets and property of the Trust.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the day and year first written above.
ACP FUNDS TRUST
By:/s/ XXXXX X. XXXXXXX
--------------------------
Name: Xxxxx X. XxXxxxx
Title: Vice President
Attest:
ASCENDANT CAPITAL PARTNERS, LLC
By:/s/ XXXX X. XXXXX
--------------------------
Name: Xxxx X. Xxxxx
Title: Managing Member
Attest:
SCHEDULE A DATED NOVEMBER 1, 2002
TO THE
INVESTMENT MANAGEMENT AGREEMENT
DATED NOVEMBER 1, 2002
BETWEEN
ACP FUNDS TRUST
AND
ASCENDANT CAPITAL PARTNERS, LLC
FUNDS
ACP Adviser Series Continuum Return Fund
ACP Advantage Continuum Return Fund
ACP Adviser Series Strategic Opportunities Fund
ACP Advantage Strategic Opportunities Fund
