TOTAL RETURN PORTFOLIO EXHIBIT (d)(xviv)
OF
ENTERPRISE ACCUMULATION TRUST
PORTFOLIO MANAGER'S AGREEMENT
THIS AGREEMENT, made the 31st day of August, 2001, is among Enterprise
Accumulation Trust (the "Fund"), a Massachusetts business trust, Enterprise
Capital Management, Inc., a Georgia corporation (hereinafter referred to as the
"Adviser"), and Pacific Investment Management Company LLC, a Delaware limited
liability (hereinafter referred to as "Portfolio Manager").
BACKGROUND INFORMATION
(A) The Fund is registered with the Securities and Exchange
Commission ("SEC") as an open-end, management investment company under the
Investment Company Act of 1940, and the rules and regulations thereunder, as
amended from time to time (the "1940 Act").
(B) The Adviser has entered into an Investment Adviser's Agreement
with the Fund ("Investment Adviser's Agreement"). Pursuant to the Investment
Adviser's Agreement, the Adviser has agreed to render investment advisory and
certain other management services to all of the portfolios of the Fund, and the
Fund has agreed to employ the Adviser to render such services and to pay to the
Adviser certain fees therefore. The Investment Adviser's Agreement recognizes
that the Adviser may enter into agreements with other investment advisers who
will serve as Portfolio Managers to the portfolios of the Fund.
(C) The parties hereto wish to enter into an agreement (the
"Agreement") whereby the Portfolio Manager will provide to the Total Return
Portfolio of the Fund (the "Total Return Portfolio") securities investment
advisory services for that Fund.
WITNESSETH THAT:
In consideration of the mutual covenants herein contained, the Fund,
Adviser and the Portfolio Manager agree as follows:
(1) The Fund and Adviser hereby employ the Portfolio
Manager to render certain investment advisory services to the Total Return
Portfolio, as set forth herein. The Portfolio Manager hereby accepts such
employment and agrees to perform such services on the terms herein set forth,
and for the compensation herein provided.
(2)(a) The Portfolio Manager shall furnish the Total Return
Portfolio advice with respect to the investment and reinvestment of the assets
of the Total Return Portfolio, or such portion of the assets of the Fund as the
Adviser shall specify from time to time, in accordance with the investment
objectives, restrictions and limitations of the Portfolio as set forth in the
Fund's most recent Registration Statement.
(2)(b) The Portfolio Manager is authorized on behalf of the
Total Return Portfolio to enter into agreements and execute any documents
required to make investments pursuant to the Registration Statement, as may be
amended from time to time.
(3) The Portfolio Manager shall perform a monthly
reconciliation of the Total Return Portfolio to the holdings report provided by
the Fund's custodian and bring any material or significant variances regarding
holdings or valuations to the attention of the Adviser.
(3)(a) The Portfolio Manager's investment authority shall
include the authority to purchase, sell, cover open positions, and generally to
deal in financial futures contracts and options thereon, in accordance with the
Registration Statement.
(3)(b) The Portfolio Manager will: (1) open and maintain
brokerage accounts for financial futures and options (such accounts hereinafter
referred to as "brokerage accounts") on behalf of and in the name of the Total
Return Portfolio. The Fund shall execute for and on behalf of the Total Return
Portfolio, standard customer agreements with a broker or brokers. The Portfolio
Manager may, using such of the securities and other property in the Total
Return Portfolio as the Portfolio Manager deems necessary or desirable, direct
the custodian to deposit on behalf of the Total Return Portfolio, original and
maintenance brokerage deposits and otherwise direct payments of cash, cash
equivalents and securities and other property into such brokerage accounts and
to such brokers as the Portfolio Manager deems desirable or appropriate.
(3)(c) The Portfolio Manager has delivered to the Adviser a
copy of its Disclosure Document, as amended, dated March 15, 2001, on file with
the Commodity Futures Trading Commission. The Adviser hereby acknowledges
receipt of such copy.
(4) The Portfolio Manager shall for all purposes herein
be deemed to be an independent contractor. The Portfolio Manager has no
authority to act for or represent the Fund or the Total Return Portfolio in any
way except to direct securities transactions pursuant to its investment advice
hereunder. The Portfolio Manager is not an agent of the Fund or the Total Return
Portfolio.
(5) It is understood that the Portfolio Manager does not,
by this Agreement, undertake to assume or pay any costs or expenses of the Fund
or the Total Return Portfolio.
(6)(a) The Adviser agrees to pay the Portfolio Manager for
its services to be furnished under this Agreement, with respect to each calendar
month after the effective date of this Agreement, on the twentieth (20th) day
after the close of each calendar month, a sum equal to 0.020833 of 1% of the
average of the daily closing net asset value of the Portfolio managed by the
Portfolio Manager during such month (that is, 0.25 of 1% per year) for assets
under management.
(6)(b) The payment of all fees provided for hereunder shall
be prorated and reduced for sums payable for a period less than a full month
in the event of termination of this Agreement on a day that is not the end of a
calendar month.
(6)(c) For the purposes of this Paragraph 6, the daily
closing net asset values of the Portfolio shall be computed in the manner
specified in the Registration Statement for the computation of the value of
such net assets in connection with the determination of the net asset value of
the Portfolio's shares.
(7) The services of the Portfolio Manager hereunder are
not to be deemed to be exclusive, and the Portfolio Manager is free to render
services to others and to engage in other activities so long as its services
hereunder are not impaired thereby. Without in any way relieving the Portfolio
Manager of its responsibilities hereunder, it is agreed that the Portfolio
Manager may employ others to furnish factual information, economic advice and/or
research, and investment recommendations, upon
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which its investment advice and service is furnished hereunder. The Portfolio
Manager may, from time to time hereafter, act as investment adviser to one or
more other investment companies and fiduciary or other managed accounts,
provided that when the purchase or sale of securities of the same issuer is
suitable for the investment objectives of two or more companies or accounts
managed by the Portfolio Manager which have available funds for investment, the
available securities will be allocated in a manner believed by the Portfolio
Manager to be equitable to each company or account over time.
(8) In the absence of willful misfeasance, bad faith or
gross negligence in the performance of its duties hereunder, or reckless
disregard of its obligations and duties hereunder, the Portfolio Manager shall
not be liable to the Fund, the Total Return Portfolio or the Adviser or to any
shareholder or shareholders of the Fund, the Total Return Portfolio or the
Adviser for any mistake of judgment, act or omission in the course of, or
connected with, the services to be rendered by the Portfolio Manager hereunder.
(9) In connection with the management of the investment
and reinvestment of the assets of the Total Return Portfolio, the Portfolio
Manager is authorized to select the brokers or dealers that will execute
purchase and sale transactions for the Total Return Portfolio, and is directed
to use its reasonable efforts to obtain the best execution with respect to such
purchases and sales of portfolio securities for the Total Return Portfolio.
Subject to this primary requirement, and maintaining as its first consideration
the benefits for the portfolios and its shareholders, the Portfolio Manager
shall have the right, subject to the approval of the Board of Trustees of the
Fund and of the Adviser, to follow a policy of selecting brokers and dealers who
furnish statistical research and other services to the Total Return Portfolio,
the Adviser, or the Portfolio Manager and, subject to the Conduct Rules of the
National Association of Securities Dealers, Inc., to select brokers and dealers
who sell shares of Portfolios of the Fund.
(10) Provided the investment objectives of the Total
Return Portfolio are adhered to, the Adviser agrees that the Portfolio Manager
may aggregate sales and purchase orders of securities, commodities and other
investments held in the Total Return Portfolio with similar orders being made
simultaneously for other accounts managed by the Portfolio Manager or with
accounts of the affiliates of Portfolio Manager, if in the Portfolio Manager's
reasonable judgment such aggregation shall result in an overall economic benefit
to the Total Return Portfolio taking into consideration the advantageous selling
or purchase price, brokerage commission and other expenses. The Adviser
acknowledges that the determination of such economic benefit to the Total Return
Portfolio by the Portfolio Manager represents the Portfolio Manager's evaluation
that the Total Return Portfolio is benefited by relatively better purchase or
sales prices, lower commission expenses and beneficial timing of transactions
or a combination of these and other factors.
(11) The Fund may terminate this Agreement by thirty (30)
days written notice to the Adviser and the Portfolio Manager at any time,
without the payment of any penalty, by vote of the Fund's Board of Trustees, or
by vote of a majority of its outstanding voting securities. The Adviser may
terminate this Agreement by thirty (30) days written notice to the Portfolio
Manager and the Portfolio Manager may terminate this Agreement by thirty (30)
days written notice to the Adviser, without the payment of any penalty. This
Agreement shall immediately terminate in the event of its assignment, unless an
order is issued by the Securities and Exchange Commission conditionally or
unconditionally exempting such assignment from the provision of Section 15(a)
of the Investment Company Act of 1940, in which event this Agreement shall
remain in full force and effect.
(12) Subject to prior termination as provided above, this
Agreement shall continue in force from the date of execution until Aug. 31,
2003, and from year to year thereafter if its continuance after said date: (1)
is specifically approved on or before said date and at least annually
thereafter by vote
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of the Board of Trustees of the Fund, including a majority of those Trustees
who are not parties to this Agreement of interested persons of any such party,
or by vote of a majority of the outstanding voting securities of the Fund, and
(2) is specifically approved at least annually by the vote of a majority of
Trustees of the Fund 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.
(13)(a) The Adviser shall indemnify and hold harmless the
Portfolio Manager, its officers and directors and each person, if any, who
controls the Portfolio Manager within the meaning of Section 15 of the
Securities Act of 1933 (any and all such persons shall be referred to as
"Indemnified Party"), against any loss, liability, claim, damage or expense
(including the reasonable cost of investigating or defending any alleged loss,
liability, claim, damages or expense and reasonable counsel fees incurred in
connection therewith), arising from the Indemnified Party's performance or
non-performance of any duties under the Agreement. However, in no case (i) is
this indemnity to be deemed to protect any particular Indemnified Party against
any liability to which such Indemnified Party would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the performance
of its duties or by reason of reckless disregard of its obligations and duties
under this Portfolio Manager's Agreement or (ii) is the Adviser to be liable
under this indemnity with respect to any claim made by any particular
Indemnified Party unless such Indemnified Party shall have notified the Adviser
in writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served
upon the Portfolio Manager or such controlling persons.
(13)(b) The Portfolio Manager shall indemnify and hold
harmless the Adviser and each of its directors and officers and each person if
any who controls the Adviser within the meaning of Section 15 of the Securities
Act of 1933, against any loss, liability, claim, damage or expense described in
the foregoing indemnity, but only with respect to the Portfolio Manager's
willful misfeasance, bad faith or gross negligence in the performance of its
duties under this Portfolio Manager's Agreement. In case any action shall be
brought against the Adviser or any person so indemnified, in respect of which
indemnity may be sought against the Portfolio Manager, the Portfolio Manager
shall have the rights and duties given to the Adviser, and the Adviser and each
person so indemnified shall have the rights and duties given to the Portfolio
Manager by the provisions of subsection (i) and (ii) of the paragraph above
this section.
(14) Except as otherwise provided in paragraph 13 hereof
and as may be required under applicable federal law, this Portfolio Manager's
Agreement shall be governed by the laws of the State of Georgia.
(15) The Portfolio Manager agrees to notify the parties
within a reasonable period of time regarding a material change in the
membership of the Portfolio Manager.
(16) The terms "vote of a majority of the outstanding
voting securities," "assignment" and "interested persons," when used herein,
shall have the respective meanings specified in the Investment Company Act of
1940 as now in effect or as hereafter amended.
(17) Unless otherwise permitted, all notices,
instructions and advice with respect to security transactions or any other
matters contemplated by this Agreement shall be deemed duly given when received
in writing:
by the Portfolio Manager: Pacific Investment Management Company LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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by the Adviser: Enterprise Capital Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
by the Portfolio: Enterprise Accumulation Trust c/o Enterprise Capital
Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
or by such other person or persons at such address or addresses as shall be
specified by the applicable party, in each case, in a notice similarly given.
Each party may rely upon any notice or other communication from the other
reasonably believed by it to be genuine.
(18) Concurrently with the execution of this Agreement, the
Portfolio Manager is delivering to the Adviser a copy of Part II of its Form
ADV, as revised, on file with the Securities and Exchange Commission. The
Adviser acknowledges receipt of such copy.
(19) The Portfolio Manager is expressly authorized to rely
upon any and all instructions, approvals and notices given on behalf of the
Fund by any one or more of those persons designated as representatives of the
Total Return Portfolio whose names, titles and specimen signatures appear in
Exhibit A attached hereto. The Adviser may amend such Exhibit A from time to
time by written notice to the Portfolio Manager. The Portfolio Manager shall
continue to rely upon these instructions until notified by the Adviser to the
contrary.
(20) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which,
when taken together, shall constitute one and the same agreement.
(21) This Agreement constitutes the entire agreement between
the Portfolio Manager, the Adviser and the Fund relating to the Total Return
Portfolio.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their duly authorized officers and their corporate seals hereunder duly
affixed and attested, as of the date first above written.
ENTERPRISE CAPITAL MANAGEMENT, INC.
ATTEST: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer
ENTERPRISE ACCUMULATION TRUST
ATTEST: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chairman, President
and Chief Executive Officer
PACIFIC INVESTMENT MANAGEMENT COMPANY LLC
ATTEST: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. BENZ
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Assistant Secretary ▇▇▇▇▇▇▇ ▇. Benz, II
Managing Director
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