EXHIBIT D12 - INVESTMENT ADVISORY AGREEMENT
FORM OF INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this __ day of February, 2001, by and between The
Advisors' Inner Circle Fund, a Massachusetts business trust (the "Trust"), and
Toews Corporation, a [Pennsylvania corporation] (the "Adviser").
WHEREAS, the Trust is an open-end, diversified management investment
company registered under the Investment Company Act of 1940, as amended, (the
"1940 Act") consisting of several series of shares, each having its own
investment policies; and
WHEREAS, the Trust desires to retain the Adviser to render investment
management services with respect to such portfolios (each a "Portfolio", and
collectively, the "Portfolios") as the Trust and the Adviser may agree upon and
are listed in the Schedule attached hereto, and the Adviser is willing to render
such services:
NOW, THEREFORE, in consideration of mutual covenants herein contained,
the parties hereto agree as follows:
1. DUTIES OF THE ADVISER. The Trust employs the Adviser to manage
the investment and reinvestment of the assets, and to
continuously review, supervise, and administer the investment
program of the Portfolio, to determine in its discretion the
securities to be purchased or sold, to provide the
Administrator and the Trust with records concerning the
Adviser's activities which the Trust is required to maintain,
and to render regular reports to the Administrator and to the
Trust's Officers and Trustees concerning the Adviser's
discharge of the foregoing responsibilities.
The Adviser shall discharge the foregoing responsibilities
subject to the control of the Board of Trustees of the Trust
and in compliance with such policies as the Trustees may from
time to time establish, and in compliance with the objectives,
policies, and limitations set forth in the Portfolios'
prospectus and statement of additional information as amended
from time to time, and applicable laws and regulations.
The Adviser accepts such employment and agrees, at its own
expense, to render the services and to provide the office
space, furnishings and equipment and the personnel required by
it to perform the services on the terms and for the
compensation provided herein.
2. PORTFOLIO TRANSACTIONS. The Adviser is authorized to select
the brokers or dealers that will execute the purchases and
sales of portfolio securities for the Portfolio and is
directed to use its best efforts to obtain the best net
results as described
from time to time in the Portfolios' prospectus and statement
of additional information. The Adviser will promptly
communicate to the Administrator, the officers and the
Trustees of the Trust such information relating to portfolio
transactions as they may reasonably request.
It is understood that the Adviser will not be deemed to have
acted unlawfully, or to have breached a fiduciary duty to the
Trust or be in breach of any obligation owing to the Trust
under this Agreement, or otherwise, by reason of its having
directed a securities transaction on behalf of the Trust to a
broker-dealer in compliance with the provisions of Section
28(e) of the Securities Exchange Act of 1934 or as described
from time to time by the Portfolios' prospectuses and
statement of additional information.
3. COMPENSATION OF THE ADVISER. For the services to be rendered
by the Adviser as provided in Sections 1 and 2 of this
Agreement, the Trust shall pay to the Adviser compensation at
the rate specified in the Schedule(s) which are attached
hereto and made a part of this Agreement. Such compensation
shall be paid to the Adviser at the end of each month, and
calculated by applying a daily rate, based on the annual
percentage rates as specified in the attached Schedule(s), to
the assets. The fee shall be based on the average daily net
assets for the month involved.
All rights of compensation under this Agreement for services
performed as of the termination date shall survive the
termination of this Agreement.
4. OTHER EXPENSES. The Adviser shall pay all expenses, not
otherwise paid by third parties, of printing and mailing
reports, prospectuses, statements of additional information,
and sales literature relating to the solicitation of
prospective clients. The Trust shall pay all expenses relating
to mailing to existing shareholders prospectuses, statements
of additional information, proxy solicitation material and
shareholder reports.
5. EXCESS EXPENSES. If the expenses for the Portfolios for any
fiscal year (including fees and other amounts payable to the
Adviser, but excluding interest, taxes, brokerage costs,
litigation, and other extraordinary costs) as calculated every
business day would exceed the expense limitations imposed on
investment companies by any applicable statute or regulatory
authority of any jurisdiction in which shares of the Portfolio
are qualified for offer and sale, the Adviser shall bear such
excess cost.
However, the Adviser will not bear Portfolio expenses which
would result in a Portfolio's inability to qualify as a
regulated investment company under provisions of the Internal
Revenue Code. Payment of expenses by the Adviser pursuant to
this Section 5 shall be settled on a monthly basis (subject to
fiscal year end reconciliation) by a reduction in the fee
payable to the Adviser for such
month pursuant to Section 3 and, if such reduction shall be
insufficient to offset such expenses, by reimbursing the
Trust.
6. REPORTS. The Trust and the Adviser agree to furnish to each
other, if applicable, current prospectuses, proxy statements,
reports to shareholders, certified copies of their financial
statements, and such other information with regard to their
affairs as each may reasonably request.
7. STATUS OF THE ADVISER. The services of the Adviser to the
Trust are not to be deemed exclusive, and the Adviser shall be
free to render similar services to others so long as its
services to the Trust are not impaired thereby. The Adviser
shall be deemed to be an independent contractor and shall,
unless otherwise expressly provided or authorized, have no
authority to act for or represent the Trust in any way or
otherwise be deemed an agent of the Trust.
8. CERTAIN RECORDS. Any records required to be maintained and
preserved pursuant to the provisions of Rule 31a-1 and Rule
31a-2 promulgated under the 1940 Act which are prepared or
maintained by the Adviser on behalf of the Trust are the
property of the Trust and will be surrendered promptly to the
Trust on request.
9. LIMITATION OF LIABILITY OF THE ADVISER. The duties of the
Adviser shall be confined to those expressly set forth herein,
and no implied duties are assumed by or may be asserted
against the Adviser hereunder. The Adviser shall not be liable
for any error of judgment or mistake of law or for any loss
arising out of any investment or for any act or omission in
carrying out its duties hereunder, except a loss resulting
from willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of reckless disregard
of its obligations and duties hereunder, except as may
otherwise be provided under provisions of applicable state law
or Federal securities law which cannot be waived or modified
hereby. (As used in this Paragraph 9, the term "Adviser" shall
include Trustees, officers, employees and other corporate
agents of the Adviser as well as that corporation itself.)
10. PERMISSIBLE INTERESTS. Trustees, agents, and shareholders of
the Trust are or may be interested in the Adviser (or any
successor thereof) as directors, partners, officers, or
shareholders, or otherwise; Trustees, partners, officers,
agents, and shareholders of the Adviser are or may be
interested in the Trust as Trustees, shareholders or
otherwise; and the Adviser (or any successor) is or may be
interested in the Trust as a shareholder or otherwise. In
addition, brokerage transactions for the Trust may be effected
through affiliates of the Adviser if approved by the Board of
Trustees, subject to the rules and regulations of the
Securities and Exchange Commission.
11. LICENSE OF THE ADVISER'S NAME. The Adviser hereby agrees to
grant a license to the Trust for use of its names in the name
of the Portfolios and such other
portfolios as the Trust and Adviser may agree upon for the
term of this Agreement and such license shall terminate upon
termination of this Agreement.
12. DURATION AND TERMINATION. This Agreement, unless sooner
terminated as provided herein, shall remain in effect until
two years from date of execution, and thereafter, for periods
of one year so long as such continuance thereafter is
specifically approved at least annually (a) by the vote of a
majority of those Trustees of the Trust who are not parties to
this Agreement or interested persons of any such party, cast
in person at a meeting called for the purpose of voting on
such approval, and (b) by the Trustees of the Trust or by vote
of a majority of the outstanding voting securities of a
Portfolio; provided, however, that if the shareholders of the
Portfolio fail to approve the Agreement as provided herein,
the Adviser may continue to serve hereunder in the manner and
to the extent permitted by the 1940 Act and rules and
regulations thereunder. The foregoing requirement that
continuance of this Agreement be "specifically approved at
least annually" shall be construed in a manner consistent with
the 1940 Act and the rules and regulations thereunder.
This Agreement may be terminated as to a Portfolio at any
time, without the payment of any penalty by vote of a majority
of the Trustees of the Trust or by vote of a majority of the
outstanding voting securities of such Portfolio on not less
than 30 days' nor more than 60 days' written notice to the
Adviser, or by the Adviser at any time without the payment of
any penalty, on 90 days' written notice to the Trust. This
Agreement will automatically and immediately terminate in the
event of its assignment. Any notice under this Agreement shall
be given in writing, addressed and delivered, or mailed
postpaid, to the other party at any office of such party.
As used in this Section 12, the terms "assignment,"
"interested persons," and a "vote of a majority of the
outstanding voting securities" shall have their respective
meanings set forth in the 1940 Act and the rules and
regulations thereunder; subject to such exemptions as may be
granted by the U.S. Securities and Exchange Commission under
said Act.
14. CHANGE IN THE ADVISER'S OWNERSHIP. The Adviser agrees that
it shall notify the Trust of any change in the ownership of
the Adviser within a reasonable time after such change.
15. NOTICE. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient if sent by
registered or certified mail, postage prepaid, addressed by
the party giving notice to the other party at the last address
furnished by the other party to the party giving notice: if to
the Trust, at Xxx Xxxxxxx Xxxxxx Xxxx, Xxxx, Xxxxxxxxxxxx
00000 and if to the Adviser, at 0000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000.
16. SEVERABILITY. If any provision of this Agreement shall be
held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be
affected thereby.
17. GOVERNING LAW. This Agreement shall be governed by the
internal laws of the Commonwealth of Massachusetts, without
regard to conflict of law principles; provided, however, that
nothing herein shall be construed as being inconsistent with
the 1940 Act.
A copy of the Agreement and Declaration of Trust of the Trust is on
file with the Secretary of the Commonwealth of Massachusetts, and notice is
hereby given that this instrument is executed on behalf of the Trustees of the
Trust as Trustees, and is not binding upon any of the Trustees, officers, or
shareholders of the Trust individually, but binding only upon the assets and
property of the Trust.
No portfolio of the Trust shall be liable for the obligations of any
other portfolio of the Trust. Without limiting the generality of the foregoing,
the Adviser shall look only to the assets of the Portfolios for payment of fees
for services rendered to the Portfolios.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the day and year first written above.
THE ADVISORS' INNER CIRCLE FUND
By: ___________________________
Attest: _______________________
TOEWS CORPORATION
By: ___________________________
Attest: _______________________
SCHEDULE TO THE
INVESTMENT ADVISORY AGREEMENT
BETWEEN
THE ADVISORS' INNER CIRCLE FUND
AND
TOEWS CORPORATION
Pursuant to Article 3, the Trust shall pay the Adviser compensation at an annual
rate as follows:
PORTFOLIO FEE:
--------- ----
Toews S&P 500 Hedged Index Fund 1.00%
Toews NASDAQ 100 Hedged Index Fund 1.00%
