Sub-Item 77Q.1) Exhibits.
SUBADVISORY AGREEMENT
This Subadvisory Agreement ("Agreement") is entered into as of July 28, 2005,
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-
fiver 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 the 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 requirements 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 disbursements 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/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
MTB INVESTMENT ADVISORS, INC.
By: Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
NWQ INVESTMENT MANAGEMENT COMPANY
LLC
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
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
