Exhibit 77(Q1): Exhibits
SUBADVISORY AGREEMENT
This Subadvisory Agreement ("Agreement")
is entered into as of December 8, 2004, by
and among the MTB Group of Funds, a Delaware
statutory trust (the "Trust"), MTB Investment
Advisors, Inc., a Maryland corporation (the
"Adviser"), and NWQ Investment Management
Company, LLC (the "Subadviser").
Recitals:
The Trust is an open-end investment
management company registered under the
Investment Company Act of 1940, as amended
(the "1940 Act"), and has thirty-four portfolios,
including the MTB Large Cap Value Fund and
MTB Large Cap Value Fund II (individually and
collectively, each the "Fund");
The Trust and the Adviser have
entered into advisory agreements, each dated as of
August 22, 2003 (the "Advisory Agreement")
as amended, pursuant to which the Adviser
provides portfolio management services
to the Fund and the other portfolios of the Trust;
The Advisory Agreement contemplates
that the Adviser may fulfill its portfolio
management responsibilities under the
Advisory Agreement by engaging one or more
subadvisers; and
The Adviser and the Board of Trustees
of the Trust ("Trustees" or "Board") desire to
retain the Subadviser to act as sub-investment
manager of the Fund and to provide certain other
services, and the Subadviser desires to perform
such services under the terms and conditions
hereinafter set forth.
Agreement:
NOW, THEREFORE, in consideration of
the mutual covenants and agreements set forth
in this Agreement, the Trust, the Adviser
and the Subadviser agree as follows:
1. Delivery of Documents. The Trust
and/or the Adviser has furnished the Subadviser with
copies, properly certified or otherwise
authenticated, of each of the following:
(a) The Trust's Agreement and Declaration
of Trust ("Declaration of Trust"), as in
effect on the date hereof;
(b) By-Laws of the Trust as in effect
on the date hereof;
(c) Resolutions of the Trustees selecting
the Subadviser as the sub-investment
manager to the Fund and approving the form of
this Agreement;
(d) Resolutions of the Trustees selecting
the Adviser as investment adviser to the
Fund and approving the form of the Investment
Advisory Agreement and
resolutions adopted by the initial shareholder
of the Fund approving the form of
the Investment Advisory Agreement;
(e) The Advisory Agreement;
(f) The Trust's current registration
statement on Form N-1A as filed with the
Securities and Exchange Commission ("SEC"),
including the Fund's current
prospectus and statement of additional
information (collectively called the
"Prospectus");
(g) All current written guidelines,
policies and procedures of the Trust, which are
applicable to the Fund, the Adviser or
the Subadviser and have been approved by
the Board of Trustees of the Trust;
(h) The code of ethics of the Trust
which has been approved by the Trustees of the
Trust in accordance with Rule 17j-1 under the 1940 Act;
(i) The Adviser's most recent Form
ADV as filed with the SEC and/or provided to
the Adviser's clients (which Form ADV
includes, among other things, a
description of the Adviser's policies
regarding allocation of securities among
clients with common investment objectives
, soft dollars and brokerage selection);
(j) Those provisions of the Adviser's
Compliance Manual that apply to the Fund;
(k) A copy of the Adviser's Proxy
Voting Policies and Procedures; and
(l) The Trust's Anti-Money Laundering
Policies and Procedures.
The Adviser will promptly furnish
the Subadviser from time to time with copies, properly
certified or otherwise authenticated, of
all amendments of or supplements to any of the foregoing
documents. The Adviser will also furnish
the Subadviser with copies of all the documents listed
on Schedule 1 to this Agreement, and shall
promptly notify the Subadviser of any material
change in any of the Fund's investment
objectives, investment strategies, investment policies,
investment restrictions, guidelines or
procedures set forth in any of the documents listed in
Schedule 1. In addition, the Chief
Compliance Officer for the Trust and
the Adviser shall
provide the Subadviser with a
certification that they have adopted
and approved a compliance
program for the Trust adopted in
accordance with Rule 38a-1 under
the 1940 Act and the
compliance program for the Adviser
adopted in accordance with Rule 206(4)-7 under the
Investment Advisers Act of 1940,
as amended ("Advisers Act"), respectively.
The Chief Compliance Officer
for the Subadviser shall provide the
Trust and the Adviser
with copies of the Subadviser's
Compliance Policies and Procedures,
a summary of its
compliance program, and a
certification that the Subadviser
has adopted and approved a
compliance program for the
Subadviser in accordance with
Rule 206(4)-7 under the Advisers
Act and such other information
as may be reasonably requested
in order to permit the Board of
Trustees of the Trust to make
such determinations with respect
to the Subadviser's compliance
program as may be required under
Rule 38a-1 under the 1940 Act.
The Subadviser has furnished
the Adviser with a copy of the
Subadviser's Form ADV most
recently filed with the SEC,
(which
Form ADV includes a description
of the Subadviser's policies
regarding allocation of securities
among clients with common
investment objectives, soft dollars
and brokerage selection) and the
code of ethics established by the
Subadviser pursuant to Rule 17j-1
under the 1940 Act
("Subadviser's Code of Ethics").
The Subadviser will promptly
furnish the Adviser with copies
of any amendments to each of
those documents, including
any revisions required by Rule 204A-
1 under the Advisers Act.
The Subadviser will also
provide the Adviser with the
Subadviser's
approved list of securities
for equity portfolios and
list of affiliated persons, and any updates or
revisions thereto at least monthly.
The Subadviser will
also provide the Adviser
and the Fund accountant with
a list and
specimen signatures of the
parties who are authorized
to act on behalf of the Subadviser and will
promptly notify Adviser in
writing of any changes to that list.
2. Investment Services.
Subject to the oversight of
the Adviser and the Trustees, the
Subadviser will manage the
investments of the Fund on a
discretionary basis, including
the
purchase, retention and
disposition of securities,
as the Fund's agent and
attorney-in-fact with
full power and authority
in connection with such assets
and in a manner that is (a) consistent
with the investment objectives,
investment strategies, investment
policies and restrictions of the
Fund as set forth in the Fund's
Prospectus, (b) in conformity with
the 1940 Act, (c) compliant
with the requirements applicable
to regulated investment companies
under the Internal Revenue
Code of 1986, as amended, and (d)
compliant with all other applicable
federal securities laws
and regulations, instructions and
directions received by the Subadviser
in writing from the
Adviser or the Board of Trustees,
and all applicable provisions in
the documents provided to the
Subadviser, pursuant to Section 1
above, as each of the documents may, from time to time, be
amended or supplemented.
The Subadviser will
discharge its duties under this
Agreement with the care, skill,
prudence, and diligence under
the circumstances then prevailing
that a prudent person acting in
the capacity of an investment
adviser to a registered investment
Trust and familiar with such
matters would use.
The Subadviser will,
at its own expense, and subject to the oversight of the Adviser and
the Board of Trustees:
(a) Manage on a discretionary
basis the Fund's investments and
determine from time
to time which securities will
be purchased, retained, sold or
loaned by the Fund,
and what portion of the Fund's
assets will be invested or held uninvested as cash.
(b) Place orders with or
through brokers, dealers or
issuers in order to effect or
execute portfolio transactions
for the Fund, subject at all
times to the Subadviser's
duty to (i) use its best efforts
to obtain for the Fund the most
favorable terms and
best execution of such portfolio
transactions, (ii) comply with any
policy with
respect to effecting or executing
portfolio transactions for the
Fund, as set forth in
the Fund's Prospectus, and (iii)
comply with any written policies and procedures
of the Trust, as approved by the
Board of Trustees from time to time.
In using its best efforts to obtain
for the Fund the most favorable terms and best
execution of portfolio securities,
the Subadviser, bearing in mind the
Fund's best
interests at all times, shall consider
all factors it deems relevant,
including but not
limited to: the price and size of the
transaction, the nature of the market
for the
security, the amount of the commission,
the timing of the transaction, market
prices and trends, the reputation,
experience and financial stability of
the broker
or dealer involved in the transaction,
and the quality of service rendered by the
broker or dealer in other transactions.
Subject to such policies and procedures as
the Board of Trustees may approve, the
Subadviser may, to the extent authorized
by Section 28(e) of the Securities
Exchange Act of 1934, as amended, cause
the Fund to pay a broker or dealer that
provided brokerage and research services
to the Adviser or the Subadviser an
amount of commission for effecting a
portfolio transaction in excess of the
amount of commission another broker or
dealer would have charged for effecting
that transaction if the Subadviser
determines, in good faith, that
such amount of
commission is reasonable in
relationship to the value of such brokerage or
research services provided
viewed in terms of that particular
transaction or the
Subadviser's overall responsibilities
to the Fund or its other advisory clients. To
the extent authorized by Section 28(e)
and the Trust's Board of Trustees, the
Subadviser shall not be deemed to have
acted unlawfully or to have breached any
duty created by this Agreement or
otherwise solely by reason of such action.
Subadviser shall not be liable
to the Adviser nor the Trust nor
the Fund for any
act, conduct or omission of any
broker selected by Subadviser to
provide
transaction or other services to
the Fund, and/or any Fund Series,
provided such
broker was selected with reasonable
care and in accordance with the provisions of
this clause (b).
(c) Submit information relating
to the valuation of the Fund's securities as the
Adviser or the Board may reasonably
request. The Trust, the Fund and
the
Adviser agree and acknowledge that
Subadviser is not a pricing agent for the
Fund or the Trust and shall not be
liable for any valuation determined
or adopted
by the Trust or the Fund, the Fund's
custodian and/or portfolio accounting agent
in accordance with any information
provided by the Subadviser, subject to the
provisions of Section 10(a).
(d) Maintain all accounts, books
and records pertaining to the Fund
("Fund's Books
and Records") as are required of an
investment adviser of a registered investment
company pursuant to Section 31 of the
1940 Act and the rules and regulations
adopted thereunder and by applicable
provisions of the Advisers Act, including,
without limitation, a daily ledger
of such assets and liabilities
relating to the Fund,
and brokerage and other records
of all portfolio transactions for
the Fund. The
Fund's Books and Records shall be
available for inspection or duplication by the
Adviser and the Trust on any day
that the Fund is open for business, upon
reasonable request, and shall be
available for telecopying to the Adviser or the
Trust on any such business day.
(e) Unless otherwise directed
by Adviser in writing, take action,
in accordance with
Adviser's Proxy Voting Policy, with
respect to matters submitted to a vote of
holders of voting securities held in
the Fund's portfolio, and provide
Adviser with
information on securities voted by
Subadviser promptly after the vote
occurs.
Adviser shall be solely responsible
for making all required filings of Form N-PX
with the appropriate regulatory bodies.
(f) From time to time, as the
Adviser or the Trustees may reasonably
request, furnish
the Adviser and to each of the Board
members reports of Fund's securities
transactions and reports on securities
held in the Fund's portfolio, all in such
detail as the Adviser or the Trustees
may reasonably request.
(g) Inform the Adviser and the
Trustees of material or significant
changes in (i)
investment strategy or policies that
will be employed in managing the Fund's
investments or (ii) key investment
officers of the Subadviser substantially
involved in managing the investments
of the Fund or (iii) Subadviser's president,
chief executive officer, chief
financial officer, chief operating
officer or chief
compliance officer, or the persons
performing the functions of any such office for
Subadviser.
(h) Make its officers and employees
available to meet with the Trustees and the
Adviser at such times and with such
frequency as the Trustees or the Adviser
reasonably request, on due notice to
the Subadviser, but at least annually, to
review the Fund's investments in light
of current and prospective market
conditions.
(i) Furnish to the Board members
such information as may be requested by them in
writing and as reasonably necessary
in order for the Trustees to evaluate this
Agreement or any proposed amendments
to this Agreement for the purpose of
casting a vote pursuant to Section 12
or 13 hereof.
(j) Furnish to the Adviser such
information as may be requested by
the Adviser and
reasonably necessary in order for
the Adviser to evaluate this Agreement and the
Subadviser's performance hereunder.
(k) The Subadviser will advise the
Adviser, and, if instructed by the Adviser, will
advise the Fund's custodian on a prompt
basis and Fund accountant each day by
electronic communication of each
confirmed purchase and sale of a security for
the Fund. Such communication with
respect to each security purchased for or
sold by the Fund shall provide the
following information: the name of the issuer;
the full description of the security
including its class; the amount or number of
shares of the security purchased or
sold; the market price; commission paid;
government charges; the gross or net
price of the security; the trade date; the
settlement date; the identity of the
effecting broker or dealer and, if different, the
identity of the clearing broker.
(l) Cooperate generally with the
Fund and the Adviser to provide information
requested by them in the possession
of the Subadviser, or reasonably
available to
it, necessary for the preparation
of the registration statement for
the Fund and all
periodic reports to be filed by
the Fund or the Adviser with the
SEC, including but
not limited to, Form N-1A, semi-annual
reports for the Fund on Form N-SAR and
Form N-CSR, proxy voting results
on Form N-PX, portfolio holdings
on Form N-
Q, shareholder communications
regarding the Fund, proxy materials furnished to
holders of shares of the Fund,
and filings with state "blue sky" authorities and
with United States agencies
responsible for tax matters regarding the Fund.
(m) Allow the Chief Compliance
Officer of the Trust and the
Adviser and/or his/her
delegate, representatives of
the Adviser, internal or external
auditors of the Trust
and Adviser, and regulators
to visit and audit Subadviser's
operations relating to
Subadviser's services under
this Agreement as may be reasonably requested, at
reasonable times and upon
reasonable notice, but at least once annually.
(n) Deliver instructions or
directions to the Adviser via
such written or oral reports as
the Fund's custodian and fund
accountant may require.
Subadviser shall instruct
all brokers, dealers or other
persons executing orders with
respect to the Fund to
forward to the Adviser copies
of all brokerage or dealer confirmations promptly
after execution of all transactions.
(o) Comply with all requirements
of Rule 17j-1 under the 1940 Act,
including the
requirement to submit its Code of
Ethics and any material changes
thereto to the
Trustees for approval, and such
other requirements of Rule 204A-1
under the
Advisers Act. The Subadviser will
submit any material change in its
Code of
Ethics to the Trustees promptly
after the adoption of such change. The
Subadviser will report at least
quarterly any material violations
of its Code of
Ethics or related procedures and
any related sanctions to the
Trustees, and will
provide a written report to the
Trustees at least annually in
accordance with the
requirements of Rule 17j-1 and
any similar requirements as may be adopted by
the SEC under the Advisers Act.
The Subadviser will also require that its
"Access Persons" (as such term is
defined in Rule 17j-1 and Rule 204A-1)
provide the Subadviser with quarterly
personal investment transaction reports and
initial and annual holdings reports,
and otherwise require such of those persons as
is appropriate to be subject to the
Subadviser's Code of Ethics.
(p) Provide to the Adviser and
the Trust a copy and summary of its compliance
program in accordance with Rule 206
(4)-7 under the Advisers Act, and any
material changes thereto, at least
annually.
3. Expenses Paid by the Subadviser.
The Subadviser will pay the cost of maintaining the
staff and personnel necessary for it to
perform its obligations under this
Agreement, the expenses
of office rent, telephone, telecommunications
and other facilities it is obligated to provide in
order to perform the services specified
in Section 2, and any other costs and expenses incurred
by it in connection with the performance
of its duties hereunder.
4. Expenses of the Fund Not Paid by
the Subadviser. The Subadviser will not be
required to pay any expenses of the Fund
or any other expenses that this Agreement does not
expressly state shall be payable by the
Subadviser. In particular, and without limiting the
generality of the foregoing, the Subadviser
will not be required to pay under this Agreement:
(a) the compensation and expenses of
Trustees and of independent advisers,
independent contractors, consultants,
managers and other agents employed by the
Trust or the Fund other than through the Subadviser;
(b) organization and offering expenses
of the Fund (including out of pocket
expenses);
(c) legal, accounting and auditing fees
and expenses of the Trust or the Fund;
(d) the fees and disbursements of
custodians and depositories of the Trust or the
Fund's assets, or any fees and expenses
of the Fund's administrator, transfer
agents, disbursing agents, plan agents
and registrars;
(e) the Fund's interest expenses;
(f) taxes and governmental fees
assessed against the Trust or the Fund's assets and
payable by the Trust or the Fund;
(g) dues and expenses of each of
the Fund or the Adviser for its respective
membership in investment trade organizations;
(h) cost of insurance relating to
fidelity bond coverage or directors and officers/
errors and omissions coverage for the
Fund or the Adviser;
(i) the cost of preparing, printing
and mailing Prospectuses, dividends, distributions,
reports, notices and proxy materials to
shareholders of the Trust or the Fund,
except that the Subadviser shall bear the
costs of providing the information
referred to in Section 2(l) to the Adviser;
(j) brokers' commissions and underwriting fees;
(k) the payments for maintaining the
Fund's books and records (other than those
books and records the Subadviser maintains
in connection with the performance
or its duties under this Agreement) and
any expense associated with calculating
the daily net asset value of the shares
of the Fund; and
(l) expenses of any shareholder meetings.
5. Registration as an Adviser. The
Subadviser hereby represents and warrants that it is
registered with the SEC as an investment
adviser, and covenants that it intends to remain so
registered for the duration of this Agreement.
Subadviser shall notify the Adviser immediately
in the event that Subadviser ceases to
be registered with the SEC as an investment adviser under
the Advisers Act.
6. Compensation of the Subadviser. For
all services to be rendered, facilities furnished
and expenses paid or assumed by the Subadviser
as herein provided for the Funds, the Adviser
will pay the Subadviser an annual fee equal to
0.45% of the value of the average daily net assets
managed by Subadviser during the annual period
for which the annual fee is paid. Such fee shall
accrue daily and be paid monthly. The "average
daily net assets" of the Fund shall be
determined on the basis set forth in the Fund's
Prospectus or, if not described therein, on such
basis as is consistent with Rule 2a-4 and Rule
22c-1 under the 1940 Act and the regulations
promulgated thereunder. The Subadviser will
receive a pro rata portion of such monthly fee for
any periods in which the Subadviser advises the
Fund less than a full month. The Subadviser
understands and agrees that neither the Trust nor
the Fund has any liability for the payment of
Subadviser's fee hereunder and that the payment
of fees owed to the Subadviser shall be the sole
responsibility of the Adviser.
7. Other Activities of the Subadviser and Its
Affiliates. It is understood that the services
under this Agreement are not exclusive and that
nothing in this Agreement shall prevent the
Subadviser or any of its affiliates or associates
from engaging in any other business or from
acting as investment adviser or manager for any
other person or entity or providing similar
services to any other person or entity, whether or
not having investment policies or a portfolio
similar to the Fund. It is specifically understood
that officers, trustees/directors and employees
of the Subadviser and those of its affiliates may
engage in providing portfolio management
services and advice to other investment advisory
clients of the Subadviser or of its affiliates.
8. Avoidance of Inconsistent Position. In
connection with purchases or sales of portfolio
securities for the account of the Fund, neither
the Subadviser nor any of its trustees/directors,
officers or employees will act as principal or
agent or receive any commission, except in
compliance with applicable law and the relevant
policies and procedures of the Fund. The
Subadviser shall not knowingly recommend that th
e Fund purchase, sell or retain securities of any
issuer in which the Subadviser has a financial
interest without obtaining prior approval of the
Adviser prior to the execution of any such transaction.
Nothing herein contained shall limit or
restrict the Subadviser or any of its officers,
affiliates or employees from buying, selling or
trading in any securities for its or their own
account or accounts. The Trust and Fund
acknowledge that the Subadviser and its
officers,
affiliates and employees, and its other
clients may at any time have, acquire,
increase, decrease
or dispose of positions in investments
which are at the same time being acquired
or disposed of
by the Fund. The Subadviser shall have
no obligation to acquire with respect
to the Fund, a
position in any investment that the
Subadviser, its officers, affiliates
or employees may acquire
for its or their own accounts or for
the account of another client if, in
the sole discretion of the
Subadviser, it is not feasible or
desirable to acquire a position in such
investment for the Fund.
Nothing herein contained shall prevent
the Subadviser from purchasing or recommending the
purchase of a particular security for
one or more funds or clients while
other funds or clients may
be selling the same security. The
Subadviser expressly acknowledges and
agrees, however, that
in any of the above described transactions
, and in all cases, the Subadviser
is obligated to fulfill
its fiduciary duty as Subadviser to
the Fund and it shall require such
of its Access Persons as is
appropriate to comply with the requi
rements of the Subadviser's Code of Ethics.
When a security proposed to
be purchased or sold for the Fund is
also to be purchased or
sold for other accounts managed by
the Subadviser at the same time, the
Subadviser shall make
such purchase or sale on a pro-rata,
rotating or other fair and equitable
basis so as to avoid any
one account being preferred over any
other account. The Subadviser shall
disclose to the
Adviser and to the Trustees the method
used to allocate purchases and sales among the
Subadviser's investment advisory clients.
It is further understood that the Subadviser may, but
shall not be obligated to, aggregate the
orders for securities to be purchased or sold.
9. No Partnership or Joint Venture.
The Trust, the Fund, the Adviser and
the Subadviser
are not partners of or joint venturers
with each other and nothing herein
shall be construed so as
to make them such partners or joint
venturers or impose any liability as such on any of them.
10. Limitation of Liability and
Indemnification.
(a) In the absence of (i) willful
misfeasance, bad faith, or gross negligence
on the part
of the Subadviser or reckless disregard of
its duties, (ii) the failure to disclose to
the Adviser a material fact regarding the
Subadviser or its investment advisory
services as they relate to the Fund; (iii)
the failure to correct any untrue statement
of a material fact regarding the Subadviser
made by the Subadviser to the
Adviser, or (iv) the reckless disregard by
the Subadviser of its obligations and
duties under this Agreement, the Subadviser
shall not be subject to any liability to
the Adviser, the Trust or the Fund, any
shareholder of the Fund, or to any person,
firm or organization, for any act or omission
in the course of or in connection with
rendering its services under this Agreement.
Specifically, the Subadviser shall
not be liable to the Adviser, the Trust or
the Fund for any error of judgment or
mistake of law, subject to the limitations
of Section 17(j) of the 1940 Act.
Nothing herein, however, shall derogate from
the Subadviser's obligations under
federal and state securities laws. Subadviser
will maintain a reasonable amount of
fidelity bond insurance coverage and shall
provide evidence of such coverage
upon request of Adviser.
(b) In the absence of (i) willful misfeasance,
bad faith or gross negligence on the part
of the Adviser or reckless disregard of its duties,
(ii) the failure of the Adviser to
disclose in the Prospectus or any filing made with
the SEC with respect to the
Trust, the Fund or the Adviser any material fact;
(iii) the failure by the Adviser to
correct any untrue statement of a material fact
contained in the Prospectus or any
other filing made with the SEC regarding the
Trust, the Fund or the Adviser; or
(iv) the reckless disregard by the Adviser of
its obligations and duties under this
Agreement, Adviser shall not be subject to any
liability to Subadviser for any act
or omission in the course of or in connection
with the Adviser's carrying out its
duties and obligations under this Agreement.
Specifically, the Adviser shall not
be liable to the Subadviser for any error of
judgment or mistake of law. Nothing
herein, however, shall derogate from the
Adviser's obligations under federal and
state securities laws.
(c) Subadviser and Adviser shall each defend,
indemnify and hold harmless the other
party and the other party's affiliates, officers,
trustees/directors, members,
employees and agents, from and against any claim,
loss, liability, judgment,
awards, settlements for which prior approval of
the indemnifying party is
obtained, damages, deficiency, penalty, cost or
expense (including without
limitation reasonable attorneys' fees and disbur
sements for external counsel)
resulting from (i) the reckless disregard of
the indemnifying party's obligations
and duties hereunder; (ii) willful misfeasance,
bad faith or gross negligence on the
part of the indemnifying party, its officers,
trustees/directors, members,
employees and agents with respect to this
Agreement or the Fund or (iii) the
failure of the indemnifying party to disclose
any material fact or the failure of the
indemnifying party to correct any untrue
statement of a material fact whether such
claim, loss, liability, damages, deficiency,
penalty, cost or expense was incurred
or suffered directly or indirectly.
(d) Adviser is liable to, and shall
indemnify, the Fund and the Trust for any acts and
omissions of the Subadviser to the same
extent the Adviser, under the terms of the
Advisory Agreement, is liable to, and must
indemnify the Fund and the Trust for
the Adviser's acts and omissions.
(e) The indemnification provisions in
Section 10 of the Agreement shall survive the
termination of this Agreement.
11. Assignment and Amendment.
This Agreement may not be assigned
by the Subadviser,
and shall automatically terminate,
without the payment of any penalty,
in the event: (a) of its
assignment, including any change in
control of the Adviser or the Subadviser
which is deemed to
be an assignment under the 1940 Act, or
(b) that the Advisory Agreement is assigned or
terminates for any reason. Trades that
were placed prior to such termination will not be
canceled; however, no new trades will
be placed after notice of such termination is received.
Termination of this Agreement shall not
relieve the Adviser or the Subadviser of any liability
incurred hereunder.
The terms of this Agreement shall
not be changed unless such change is agreed to in
writing by the parties hereto and is
approved by the affirmative vote of a
majority of the Trustees
of the Trust voting in person, including
a majority of the Trustees who are not interested persons
of the Trust, the Adviser or the Subadviser,
at a meeting called for the purpose of voting on such
change, and (to the extent required by the
0000 Xxx) unless also approved at a meeting by the
affirmative vote of the majority of outstanding
voting securities of the Fund.
12. Duration and Termination. This
Agreement shall become effective as of the date first
above written and shall remain in full
force and effect for a period of two years from such date,
and thereafter for successive periods
of one year (provided such continuance is approved at least
annually in conformity with the requirements
of Section 15 of the 0000 Xxx) unless the
Agreement is terminated automatically
as set forth in Section 11 hereof or until terminated as
follows:
(a) The Trust or the Adviser may at
any time terminate this Agreement, without
payment of any penalty, by not more than
60 days' prior written notice delivered
or mailed by registered mail, postage
prepaid, or by nationally recognized
overnight delivery service, receipt
requested, to the Subadviser. Action of the
Trust under this subsection may be taken
either by (i) vote of its Trustees, or (ii)
the affirmative vote of the outstanding
voting securities of the Fund; or
(b) The Subadviser may at any time
terminate this Agreement by not less than one
hundred twenty (120) days' prior written
notice by facsimile or delivered via
registered mail, postage prepaid or a
nationally recognized overnight delivery
service, receipt requested, to the Adviser.
Termination of this Agreement
pursuant to this Section shall be without payment of any
penalty.
Fees payable to Subadviser for
services rendered under this Agreement will be prorated
to the date of termination of the Agreement.
In the event of termination of this
Agreement for any reason, the Subadviser shall,
immediately upon receiving notice of termination
or a receipt acknowledging delivery of a notice
of termination to Adviser, or such later date
as may be specified in such notice, cease all activity
on behalf of the Fund and with respect to any
of its assets, except as expressly directed by the
Adviser, and except for the settlement of securities
transactions already entered into for the
account of the Fund. In addition, the Subadviser
shall deliver copies of the Fund's Books and
Records to the Adviser upon request by such means
and in accordance with such schedule as the
Adviser shall reasonably direct and shall otherwise
cooperate, as reasonably directed by the
Adviser, in the transition of Fund investment
management to any successor to the Subadviser,
including the Adviser; provided however that the
Subadviser shall be permitted to retain at its
own expense a separate copy of such records for
its own protection and may not disclose such
information to other parties unless required to
comply with any law, rule, regulation or order of a
court or government authority.
13. Approval of Agreement. The parties
hereto acknowledge and agree that the obligations
of the Trust, the Adviser, and the Subadviser
under this Agreement shall be subject to the
following condition precedent: this Agreement
shall have been approved by the vote of a
majority of the Trustees, who are not interested
persons of the Trust, the Adviser or the
Subadviser, at a meeting called for the purpose
of voting on such approval.
14. Miscellaneous.
(a) The captions in this Agreement are
included for convenience of reference only
and in no way define or limit any of the
provisions hereof or otherwise affect their
construction or effect. This Agreement may
be executed simultaneously in two or
more counterparts, each of which shall be
deemed an original, but all of which
together shall constitute one and the same
instrument. The obligations of the
Trust and the Fund are not personally
binding upon, nor shall resort be had to be
private property of, any of the Trustees,
shareholders, officers, employees or
agents of the Trust or the Fund, but only
the Fund's property shall be bound. The
Trust or the Fund shall not be liable for
the obligations of any other series of the
Trust.
(b) Any information supplied by
the Trust or the Adviser to the Subadviser in
connection with the performance of
the Subadviser's duties hereunder, or learned
by the Subadviser as a result of its
position as Subadviser to the Fund, which
information is not otherwise in the
public domain, is to be regarded as
confidential information for use by
the Subadviser only in connection with the
performance of its duties hereunder.
Any such information in the hands of the
Subadviser may be disclosed as necessary
to comply with any law, rule,
regulation or order of a court or
government authority.
(c) Any information supplied by the
Subadviser to the Trust or the Adviser in
connection with the performance of the
Subadviser's duties under this Agreement
or learned by the Trust or the Adviser
as a result of the services provided by the
Subadviser under this Agreement, which
information is not otherwise in the
public domain, is to be regarded as
confidential information for use by the
Adviser, the Fund and/or its agents only
in connection with the Fund and its
investments. Any such information in the
hands of either party may be disclosed
as necessary to comply with any law, rule,
regulation or order of a court or
government authority.
(d) The Subadviser agrees to submit any
proposed sales literature (including
advertisements, whether in paper, electronic
or Internet medium) for the Trust, the
Fund, the Subadviser or for any of its
affiliates which mentions the Trust, the
Fund or Adviser (other than the use of
the Fund's name in a list of clients
of the
Subadviser), to the Adviser and to the
Fund's distributor for review and filing
with the appropriate regulatory authority
prior to public release of any such sales
literature; provided, however, that nothing
herein shall be construed so as to
create any obligation or duty on the part
of the Subadviser to produce sales
literature for the Trust or the Fund.
(e) The Trust and the Adviser agree to
submit any proposed sales literature that
mentions the Subadviser (other than
identifying the Subadviser as subadviser to
the Fund) to the Subadviser for review prior
to use and the Subadviser agrees to
promptly review such materials by a
reasonable and appropriate deadline. The
Trust agrees to cause the Adviser and the
Trust's distributor to promptly review
all such sales literature for compliance
with relevant requirements, to promptly
advise the Subadviser of any deficiencies
contained in such sales literature, and to
promptly file complying sales literature
with the relevant regulatory authorities.
Neither the Adviser, nor the Trust nor
the Fund nor any affiliate of the foregoing
will use the registered trademarks, service
marks, logos, names or any other
proprietary designations of Subadviser,
its subsidiaries and/or affiliates
(collectively, "Subadviser Marks") in
any advertising or promotional materials
without Subadviser's prior written approval,
which will not be unreasonably
withheld. Adviser and Subadviser will
work together to develop mutually
agreeable standards and procedures for
the review of materials bearing Subadviser
Marks to facilitate the efficient creation
and use of such advertising or
promotional materials.
(f) All notices, consents, waivers
and other communications under this Agreement
must be in writing and, other than notices
governed by Section 12 above, will be
deemed to have been duly given when (i)
delivered by hand (with written
confirmation of receipt), (ii) sent by
telecopier, provided that receipt is confirmed
by return telecopy and a copy is sent by
overnight mail via a nationally
recognized overnight delivery service
(receipt requested); (iii) when received by
the addressee, if sent via a nationally
recognized overnight delivery service
(receipt requested) or U.S. mail
(postage prepaid), in each case to the
appropriate
address and telecopier number set
forth below (or to such other address and
telecopier number as a party may
designate by notice to the other parties):
Subadviser:
NWQ Investment Management Company, LLC
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
Attention: General Counsel
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Adviser: MTB Investment Advisors, Inc.
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: President
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Trust: MTB Group of Funds
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Secretary
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
(g) For purposes of this Agreement: (i) "
affirmative vote of a majority of the
outstanding voting securities of the Fund"
means the affirmative vote, at an
annual meeting or a special meeting of the
shareholders of the Fund, duly called
and held, (A) of 67% or more of the shares
of the Fund present (in person or by
proxy) and entitled to vote at such meeting,
if the holders of more than 50% of the
outstanding shares of the Fund entitled to vote
at such meeting are present (in
person or by proxy), or (B) of more than 50% of
the outstanding shares of the
Fund entitled to vote at such meeting, whichever
is less; and (ii) "interested
person" and "assignment" shall have the respective
meanings as set forth in the
1940 Act, subject, however, to such exemptions as
may be granted by the SEC
under the 1940 Act.
(h) This Agreement shall be construed in
accordance with the laws of the State of
New York and the applicable provisions of the
1940 Act.
(i) The provisions of this Agreement are
independent of and separable from each
other and no provision shall be affected or
rendered invalid or unenforceable by
virtue of the fact that for any reason any
other or others of them may be deemed
invalid or unenforceable in whole or in
part.
(j) Subadviser agrees to maintain the security
and confidentiality of nonpublic
personal information ("NPI") of Fund customers
and consumers, as those terms
are defined in Xxxxxxxxxx X-X, 00 XXX Part 248.
Subadviser agrees to use and
redisclose such NPI for the limited purposes of
processing and servicing
transactions; for specific law enforcement and
miscellaneous purposes; and to
service providers or in connection with joint
marketing arrangements directed by
the Fund, in each instance in furtherance of
fulfilling Subadviser's obligations
under this Agreement and consistent with the
exceptions provided in 17 CFR
Sections 248.14, 248.15 and 248.13,
respectively.
(k) Any question of interpretation of
any term or section of this Agreement having a
counterpart in or otherwise derived from a
term or provision of the 1940 Act or
Advisers Act shall be resolved by reference
to such term or provision of the 1940
Act or Advisers Act and interpretation thereof,
if any, by the United States courts
or, in the absence of any controlling decision
of any such court, by rules,
regulations or orders of the SEC validly issued
pursuant to the 1940 Act or
Advisers Act. In addition, where the effect of
a requirement of the 1940 Act or
Advisers Act reflected in any provision of this
Agreement is relaxed by rule,
regulation or order of the SEC, whether of special
or general application, such
provision shall be deemed to incorporate the effect
of such rule, regulation or
order.
(l) In the event the Subadviser may
deem it advantageous to the Fund to place
portfolio securities trades for the Fund through
(a) a broker-dealer affiliate of the
subadviser to another portfolio of the Trust; or
(b) a broker-dealer affiliate of the
subadviser to a discrete portion of the Fund, the
Subadviser may engage in such
trades under Rule 17a-10 under the 1940 Act without
complying with certain
provisions of Rule 17e-1 of the Investment Company
Act of 1940, provided that
Subadviser does not consult with any entity which
subadvises any other portfolio
of the Trust, or any portion of any such portfolio
("Another Subadvised Fund"),
concerning transactions for the Fund or Another
Subadvised Fund.
(m) Each of the Adviser and Subadviser represents
and warrants to the other that it has
a business continuity plan designed to restore
services as promptly as practical as
a result of work stoppage, power or other mechanical
failure, natural disaster,
governmental action, communication disruption or
other impossibility of
performance.
15. Limitations of Liability of Trustees and
Shareholders of the Trust. The execution
and delivery of this Agreement have been authorized
by the Trustees of the Trust and signed by
an authorized officer of the Trust, acting as such,
and neither such authorization by such Trustees
nor such execution and delivery by such officer
shall be deemed to have been made by any of
them individually or to impose any liability on
any of them personally, and the obligations of this
Agreement are not binding upon any of the Trustees
or shareholders of the Trust, but bind only
the appropriate property of the Fund, or Class,
as provided in the Declaration of Trust.
IN WITNESS WHEREOF, the parties hereto have
caused this instrument to be signed on their
behalf by their duly authorized officers as
of the date first above written.
MTB GROUP OF FUNDS
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
MTB INVESTMENT ADVISORS, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
NWQ INVESTMENT MANAGEMENT
COMPANY LLC
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice Presidetn
SCHEDULE 1
Custody Agreement between the Trust and
the Fund's custodian ("Custodian"), including
information as to:
The Fund's nominee
The federal tax identification
numbers of the Fund and its nominee
All routing, bank participant and account
numbers and other information necessary to
provide proper instructions for transfer
and delivery of securities to the Fund's
account at the Custodian
Name, address, telephone and Fax number
of the Custodian's employees responsible for
the Fund's accounts
The Fund's pricing service and contact persons
All applicable procedures and guidelines
adopted by the Board of Trustees or the Adviser
regarding management of the Fund,
including but not limited to:
Transactions with affiliated
persons
Guidelines for Determining
Fair Value of Securities
Net Asset Value Correction
Policies and Procedures
Evaluating the liquidity of
securities
Segregation of liquid assets in
connections with firm commitments and standby
commitments
Derivative contracts and securities
Repurchase Agreement Guidelines
Rule 10f-3 (relating to
affiliated underwriting syndicates)
Rule 17a-7 (relating to
interfund transactions)
Rule 17e-1 (relating to
transactions with affiliated brokers) and
Procedures for cash sweep
investments in money market funds
Monitoring portfolio compliance
Subadviser supervision
Daily review of pricing
Any master agreements that the Trust
has entered into on behalf of the Fund, including:
Master Repurchase Agreement
Master Foreign Exchange Netting Agreements
Master Swap Agreements
Form of Securities Lending Agency Agreement
Other agreements that the Trust has
entered into on behalf of the Fund, including:
Investment Advisory Agreement
Other relevant documents, including:
CFTC Rule 4.5 letter
Current as of: 8/18/94
