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ESC STRATEGIC FUNDS, INC.
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, effective commencing on January 1, 1998, between SunTrust
Equitable Securities (the "Adviser") and ESC Strategic Funds, Inc. (the
"Company").
WHEREAS, the Company is a Maryland corporation of the series type
organized under Articles of Incorporation dated November 24, 1993, (the
"Articles") and is registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as an open-end, management series-type investment
company;
WHEREAS, the Company wishes to retain the Adviser to render investment
advisory services to the Company with respect to each of its present and future
series ("Funds"), unless otherwise specifically indicated by the Company, and
the Adviser is willing to furnish such services to the Company;
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act");
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the Company and the Adviser as follows:
1. Appointment. The Company hereby appoints the Adviser to act as
investment adviser for the Funds for the periods and on the terms set forth in
this Agreement. The Adviser accepts such appointment and agrees to furnish the
services herein set forth, for the compensation herein provided.
2. Investment Advisory Duties. Subject to the supervision of the
Directors of the Company, the Adviser will have the sole and exclusive
responsibility for providing, or arranging for others to provide, (a) the
management for the Funds' assets in accordance with each Fund's investment
objectives, policies and limitations as stated in its prospectus and Statement
of Additional Information included as part of the Company's Registration
Statement filed with the Securities and Exchange Commission, as they may be
amended from time to time, copies of which shall be provided to the Adviser by
the Company; and (b) the placement of orders to purchase and sell securities for
the Funds. The Adviser, subject to approval in each case by the Directors of the
Company, shall be authorized to retain one or more subadvisers (the "Portfolio
Managers") for each of the Funds, and to direct that such Portfolio Managers
shall exercise full discretion in furnishing investment advice to the Funds and
arranging for the execution of portfolio transactions for the Funds, subject
only to general oversight by the Adviser. The Adviser shall be responsible for
monitoring, or arranging for others to monitor, compliance by the Portfolio
Managers with the investment policies and restrictions of the respective Funds
and with such other limitations or directions as the Board of Directors of the
Company may from time to time prescribe. The Adviser shall report to the Board
of Directors of the Company 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 and Portfolio Managers to the
investment policies of the Funds.
The Adviser further agrees that, in performing its duties hereunder, it
will directly, or assure that the Portfolio Managers will,:
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(a) comply with the 1940 Act and all rules and regulations thereunder,
the Advisers Act, the Internal Revenue Code (the "Code") and all other
applicable federal and state laws and regulations, and with any applicable
procedures adopted by the Directors;
(b) use reasonable efforts to manage the Funds so that they will each
qualify, and continue to qualify, as regulated investment companies under
Subchapter M of the Code and regulations issued thereunder;
(c) place orders for the investments of the Funds directly with the
issuer, or with any broker or dealer, in accordance with applicable policies
expressed in the prospectus and/or Statement of Additional Information with
respect to each Fund and in accordance with applicable legal requirements;
(d) furnish to the Company whatever statistical information the Company
may reasonably request with respect to the Funds' assets or contemplated
investments; keep the Company and the Directors informed of developments
materially affecting the Funds' portfolios; and, on the Adviser's or Portfolio
Managers' own initiative, furnish to the Company from time to time whatever
information the Adviser or Portfolio Manager believes appropriate for this
purpose;
(e) make available to the Company's administrator (the
"Administrator"), and the Company, promptly upon their request, such copies of
its investment records and ledgers with respect to the Funds as may be required
to assist the Administrator and the Company in their compliance with applicable
laws and regulations. The Adviser will furnish the Directors with such periodic
and special reports regarding the Funds as they may reasonably request;
(f) immediately notify the Company in the event that the Adviser or any
of its affiliates: (1) becomes aware that it is subject to a statutory
disqualification that prevents the Adviser from serving as investment adviser
pursuant to this Agreement; or (2) becomes aware that it is the subject of an
administrative proceeding or enforcement action by the Securities and Exchange
Commission ("SEC") or other regulatory authority. The Adviser further agrees to
notify the Company immediately of any material fact known to the Adviser
respecting or relating to the Adviser that is not contained in the Company's
Registration Statement regarding the Funds, or any amendment or supplement
thereto, but that is required to be disclosed therein, and of any statement
contained therein that becomes untrue in any material respect;
(g) in making investment decisions with respect to the Funds, use no
inside information that may be in its possession or in the possession of any of
its affiliates, nor will the Adviser seek to obtain any such information.
3. Allocation of Charges and Expenses. Except as otherwise
specifically provided in this section 3, the Adviser shall pay the compensation
and expenses of all its directors, officers and employees who serve as
directors, officers and executive employees of the Company (including the
Company's share of payroll taxes) and shall pay all fees payable pursuant to
portfolio management agreements with any Portfolio Managers it may retain. The
Adviser shall make available, without expense to the Funds, the services of its
directors, officers and employees who may be duly elected officers or directors
of the Company, subject to their individual consent to serve and to any
limitations imposed by law.
The Adviser shall not be required to pay any expenses of the Company or
the Funds other than those specifically allocated to the Adviser in this section
3. In particular, but without limiting the
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generality of the foregoing, the Adviser shall not be responsible, except to the
extent of the reasonable compensation of such of the Company's employees as are
officers or employees of the Adviser whose services may be involved, for the
following expenses of the Company or the Funds: organization and certain
offering expenses of the Company and the Funds (including out-of-pocket
expenses, but not including the Adviser's overhead and employee costs); fees
payable to the Adviser; legal expenses; auditing and accounting expenses;
interest expenses; telephone, telex, facsimile, postage and other communications
expenses; taxes and governmental fees; fees, dues and expenses incurred by or
with respect to the Company or the Funds in connection with membership in
investment company trade organizations; costs of insurance; fees and expenses of
the Company's Administrator or of any custodian, subcustodian, transfer agent,
registrar, or dividend disbursing agent of the Company or the Funds; payments
for portfolio pricing or valuation services to pricing agents, accountants,
bankers and other specialists, if any; expenses of preparing and printing share
certificates; other expenses in connection with the issuance, offering,
distribution, redemption or sale of securities issued by the Funds; expenses
relating to investor and public relations; expenses of registering and
qualifying shares of the Funds for sale; freight, insurance and other charges in
connection with the shipment of the Funds' portfolio securities; brokerage
commissions or other costs of acquiring or disposing of any portfolio securities
or other assets of the Funds, or of entering into other transactions or engaging
in any investment practices with respect to the Funds; expenses of printing and
distributing prospectuses, Statements of Additional Information, reports,
notices and dividends to stockholders; costs of preparing, printing and filing
documents with regulatory agencies; costs of stationery and other office
supplies; any litigation or other extraordinary expenses; costs of stockholders'
and other meetings; the compensation and all expenses (specifically including
travel expenses relating to the business of the Company or a Fund) of officers,
directors and employees of the Company who are not interested persons of the
Adviser; and travel expenses (or an appropriate portion thereof) of officers or
directors of the Company who are officers, directors or employees of the Adviser
to the extent that such expenses relate to attendance at meetings of the Board
of Directors of the Company, or any committees thereof or advisory group thereto
or other business of the Company or the Funds.
4. Compensation. As compensation for the services provided and expenses
assumed by the Adviser under this Agreement, the Company will arrange for the
Funds to pay the Adviser at the end of each calendar month an investment
advisory fee computed daily at an annual rate equal to the percentage of each
Fund's average daily net assets specified in Schedule A hereto. The "average
daily net assets" of a Fund shall mean the average of the values placed on the
Fund's net assets as of the time at which, and on such days as, Fund lawfully
determines the value of its net assets in accordance with the prospectus or
otherwise. The value of net assets of the Fund shall always be determined
pursuant to the applicable provisions of the Articles and the Registration
Statement. If, pursuant to such provisions, the determination of net asset value
for a Fund is suspended for any particular business day, then for the purposes
of this section 4, the value of the net assets of the Fund as last determined
shall be deemed to be the value of its net assets as of the close of the New
York Stock Exchange, or as of such other time as the value of the net assets of
the Fund's portfolio may lawfully be determined, on that day. If the
determination of the net asset value of the shares of a Fund has been so
suspended for a period including any month end when the Adviser's compensation
is payable pursuant to this section, then the Adviser's compensation payable at
the end of such month shall be computed on the basis of the value of the net
assets of the Fund as last determined (whether during or prior to such month).
If a Fund determines the value of the net assets of its portfolio more than once
on any day, then the last such determination thereof on that day shall be deemed
to be the sole determination thereof on that day for the purposes of this
section 4.
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5. Books and Records. The Adviser agrees to maintain such books and
records with respect to its services to the Company and the Funds as are
required by Section 31 under the 1940 Act, and rules adopted thereunder, and by
other applicable legal provisions, and to preserve such records for the periods
and in the manner required by that Section, and those rules and legal
provisions. The Adviser also agrees that records it maintains and preserves
pursuant to Rules 31a-1 and 31a-2 under the 1940 Act and otherwise in connection
with its services hereunder are the property of the Company and will be
surrendered promptly to the Company upon its request. And the Adviser further
agrees that it will furnish to regulatory authorities having the requisite
authority any information or reports in connection with its services hereunder
which may be requested in order to determine whether the operations of the
Company and the Funds are being conducted in accordance with applicable laws and
regulations.
6. Standard of Care and Limitation of Liability. The Adviser shall
exercise its best judgment in rendering the services provided by it under this
Agreement. The Adviser shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Company or a Fund or the holders of a
Fund's shares in connection with the matters to which this Agreement relates,
provided that nothing in this Agreement shall be deemed to protect or purport to
protect the Adviser against any liability to the Company, a Fund or to holders
of a Fund's shares to which the Adviser would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or by reason of the Adviser's reckless disregard of
its obligations and duties under this Agreement. As used in this Section 6, the
term "Adviser" shall include any officers, directors, employees or other
affiliates of the Adviser performing services with respect to the Company or a
Fund.
7. Services Not Exclusive. It is understood that the services of the
Adviser are not exclusive, and that nothing in this Agreement shall prevent the
Adviser from providing similar services to other investment companies or to
other series of investment companies (whether or not their investment objectives
and policies are similar to those of a Fund) or from engaging in other
activities, provided such other services and activities do not, during the term
of this Agreement, interfere in a material manner with the Adviser's ability to
meet its obligations to the Company and the Funds hereunder. When the Adviser
recommends the purchase or sale of a security for other investment companies and
other clients, and at the same time the Adviser recommends the purchase or sale
of the same security for a Fund, it is understood that in light of its fiduciary
duty to the Fund, such transactions will be executed on a basis that is fair and
equitable to the Fund. In connection with purchases or sales of portfolio
securities for the account of a Fund, neither the Adviser nor any of its
directors, officers or employees shall act as a principal or agent or receive
any commission. If the Adviser provides any advice to its clients concerning the
shares of the Funds, the Adviser shall act solely as investment counsel for such
clients and not in any way on behalf of the Company or a Fund.
8. Duration and Termination. This Agreement shall continue until
January 1, 2000 and thereafter shall continue automatically, with respect to all
or fewer than all the Funds, as applicable, for successive annual periods,
provided such continuance is specifically approved at least annually by (i) the
Directors or, (ii) with respect to each Fund, by vote of a "majority" (as
defined in the ▇▇▇▇ ▇▇▇) of the Fund's outstanding voting securities (as defined
in the 1940 Act), provided that in either event the continuance is also approved
by a majority of the Directors who are not parties to this Agreement or
"interested persons" (as defined in the ▇▇▇▇ ▇▇▇) of any party to this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval. Notwithstanding the foregoing, this Agreement may be
terminated: (a) at any time without penalty by the Company or a Fund upon the
vote of a majority of the Directors (with respect to the Company or a Fund) or,
with respect to a Fund, by vote of the majority of the Fund's outstanding voting
securities, upon sixty (60) days' written notice to the Adviser or (b) by the
Adviser at any time without penalty, upon sixty (60) days' written notice to the
Company. This Agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act).
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9. Amendments. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought, and no amendment of this Agreement shall be effective
with respect to a Fund until approved by an affirmative vote of (i) a majority
of the outstanding voting securities of the Fund, and (ii) a majority of the
Directors, including a majority of Directors who are not interested persons of
any party to this Agreement, cast in person at a meeting called for the purpose
of voting on such approval, if such approval is required by applicable law.
10. Proxies. Unless the Company gives written instructions to the
contrary, the Adviser shall vote all proxies solicited by or with respect to the
issuers of securities in which assets of the Funds may be invested, provided,
that the Adviser may delegate this responsibility with respect to one or more
Funds to Portfolio Managers pursuant to a portfolio management agreement. The
Adviser (or Portfolio Manager) shall use its best good faith judgment to vote
such proxies in a manner which best serves the interests of the particular
Fund's shareholders.
11. Name Reservation. The Company acknowledges and agrees that the
Adviser has property rights relating to the use of the term "ESC Strategic" and
has permitted the use of such term by the Company and its Funds. The Company
agrees that: (i) it will use the term "ESC Strategic" only as a component of the
names of the Company and the Funds and for no other purposes; (ii) it will not
purport to grant to any third party any rights in such term; (iii) at the
request of the Adviser, the Company will take such action as may be required to
provide its consent to use of the term by the Adviser, or any affiliate of the
Adviser to whom the Adviser shall have granted the right to such use; and (iv)
the Adviser may use or grant to others the right to use the term as all or a
portion of a corporate or business name or for any commercial purpose, including
a grant of such right to any other investment company. Upon termination of this
Agreement as to the Company or any Fund, the Company shall, upon request of the
Adviser, cease to use the term "ESC Strategic" as part of the name of the
Company and its Funds, or of any Fund as to which the Agreement is terminated,
as applicable. In the event of any such request by the Adviser that use of the
term "ESC Strategic" shall cease, the Company shall cause its officers,
directors and stockholders to take any and all such actions which the Adviser
may request to effect such request and to reconvey to the Adviser any and all
rights to the term "ESC Strategic."
12. Miscellaneous.
a. This Agreement shall be governed by the laws of the State of
Tennessee, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Advisers Act, or rules or orders of the SEC
thereunder.
b. The captions of this Agreement are included for convenience only
and in no way define or limit any of the provisions hereof or otherwise affect
their construction or effect.
c. 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 hereby and, to this extent, the provisions of this
Agreement shall be deemed to be severable.
d. Nothing herein shall be construed as constituting the Adviser as an
agent of the Company or any Fund.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of January 1, 1998.
ESC STRATEGIC FUNDS, INC.
By ______________________________
President
SUNTRUST EQUITABLE SECURITIES
By ______________________________
President
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SCHEDULE A
Fees payable to the Adviser pursuant to paragraph 4 hereof shall be at
the following annual rates for each Fund:
ESC Strategic Appreciation Fund 1.00%
ESC Strategic Global Equity Fund 1.00%
ESC Strategic Small Cap Fund 1.00%
ESC Strategic Growth Fund 1.25%
ESC Strategic Income Fund 1.00%
ESC Strategic Value Fund 1.25%
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