Exhibit (d)(1)
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT is made this 14th day of February, 2003 by and between
Atlantic Whitehall Funds Trust, a Delaware statutory trust (the "Trust") with
respect to its series of shares (each, a "Fund" and collectively, the "Funds")
shown on Appendix A attached hereto, as it may be amended from time to time, and
Atlantic Trust Advisors, Inc., a New York corporation (the "Advisor").
RECITALS
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company;
WHEREAS, the Advisor is registered under the Investment Advisers Act of
1940, as amended (the "Advisers Act"), as an investment advisor and engages in
the business of acting as an investment advisor;
WHEREAS, the Trust's Trust Instrument (the "Trust Instrument")
authorizes the Board of Trustees of the Trust (the "Board of Trustees") to
establish separate series of shares of beneficial interest of the Trust, where
each series represents the entire undivided interests of a separate portfolio of
assets, and the Board of Trustees has established the Funds shown on Schedule A
attached hereto; and
WHEREAS, the Trust and the Advisor desire to enter into an agreement to
provide for investment advisory services to the Funds upon the terms and
conditions hereinafter set forth;
NOW THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. Advisory Services. The Advisor shall act as investment advisor for
the Funds and shall, in such capacity, supervise all aspects of the Funds'
operations, including the investment and reinvestment of cash, securities or
other properties comprising the Funds' assets, subject at all times to the
policies and control of the Board of Trustees. The Advisor shall give the Trust
and the Funds the benefit of its best judgment, efforts and facilities in
rendering its services as investment advisor.
2. Investment Analysis and Implementation. In carrying out its
obligations under Section 1 hereof, the Advisor shall:
(a) supervise all aspects of the operations of the Funds;
(b) obtain and evaluate pertinent information about significant
developments and economic, statistical and financial data, domestic,
foreign or otherwise, whether affecting the economy generally or the
Funds, and whether concerning the individual issuers whose securities are
included in the assets of the Funds or the activities in which such
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issuers engage, or with respect to securities which the Advisor considers
desirable for inclusion in the Funds' assets;
(c) determine which issuers and securities shall be represented in
the Funds' investment portfolios and regularly report thereon to the Board
of Trustees;
(d) formulate and implement continuing programs for the purchases and
sales of the securities of such issuers and regularly report thereon to
the Board of Trustees; and
(e) take, on behalf of the Trust and the Funds, all actions which
appear to the Trust and the Funds necessary to carry into effect such
purchase and sale programs and supervisory functions as aforesaid,
including but not limited to the placing of orders for the purchase and
sale of securities for the Funds.
3. Delegation of Responsibilities. The Advisor is authorized to delegate
any or all of its rights, duties and obligations under this Agreement to one or
more sub-advisors, and may enter into agreements with sub-advisors, and may
replace any such sub-advisors from time to time in its discretion, in accordance
with the 1940 Act, the Advisers Act, and rules and regulations thereunder, as
such statutes, rules and regulations are amended from time to time or are
interpreted from time to time by the staff of the Securities and Exchange
Commission ("SEC"), and if applicable, exemptive orders or similar relief
granted by the SEC and upon receipt of approval of such sub-advisors by the
Board of Trustees and by shareholders (unless any such approval is not required
by such statutes, rules, regulations, interpretations, orders or similar
relief).
4. Independent Contractors. The Advisor and any sub-advisors shall for
all purposes herein be deemed to be independent contractors and, unless
otherwise expressly provided or authorized, shall have no authority to act for
or represent the Trust in any way or otherwise be deemed to be an agent of the
Trust.
5. Control by Board of Trustees. Any investment program undertaken by
the Advisor pursuant to this Agreement, as well as any other activities
undertaken by the Advisor on behalf of the Funds, shall at all times be subject
to any directives of the Board of Trustees communicated in writing to the
Advisor.
6. Compliance with Applicable Requirements. In carrying out its
obligations under this Agreement, the Advisor shall at all times conform to:
(a) all applicable provisions of the 1940 Act and the Advisers Act
and any rules and regulations adopted thereunder;
(b) the provisions of the registration statement of the Trust, as the
same may be amended from time to time under the Securities Act of 1933 and
the 1940 Act;
(c) the provisions of the Trust Instrument, as the same may be
amended from time to time;
(d) the provisions of the Bylaws of the Trust, as the same may be
amended from time to time; and
(e) any other applicable provisions of state, federal or foreign law.
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7. Broker-Dealer Relationships. The Advisor is responsible for
decisions to buy and sell securities for the Funds, broker-dealer selection, and
negotiation of brokerage commission rates.
(a) The Advisor's primary consideration in effecting a security
transaction will be to obtain the best execution.
(b) In selecting a broker-dealer to execute each particular
transaction, the Advisor will take the following into consideration: the
best net price available; the reliability, integrity and financial
condition of the broker-dealer, the size of and the difficulty in
executing the order; and the value of the expected contribution of the
broker-dealer to the investment performance of the Funds on a continuing
basis. Accordingly, the price paid by a Fund to a particular broker-dealer
in any transaction may be less favorable than that available from another
broker-dealer if the difference is reasonably justified by other aspects
of the execution services offered.
(c) Subject to such policies as the Board of Trustees may from time
to time determine, and applicable laws, the Advisor shall not be deemed to
have acted unlawfully or to have breached any duty created by this
Agreement or otherwise solely by reason of its having caused a Fund to pay
a broker or dealer that provides brokerage and research services to the
Advisor an amount of commission for effecting a Fund investment
transaction in excess of the amount of commission another broker or dealer
would have charged for effecting that transaction, if the Advisor
determines in good faith that such amount of commission was reasonable in
relation to the value of the brokerage and research services provided by
such broker or dealer, viewed in terms of either that particular
transaction or the Advisor's overall responsibilities with respect to a
Fund other Funds of the Trust and to other clients of the Adviser to which
the Adviser exercises investment discretion. The Advisor is further
authorized to allocate the orders placed by it on behalf of the Funds to
such brokers and dealers who also provide research or statistical
material, or other services to the Funds, to the Advisor, or to any
sub-advisor. Such allocation shall be in such amounts and proportions as
the Advisor shall determine and the Advisor will report on said
allocations regularly to the Board of Trustees indicating the brokers to
whom such allocations have been made and the basis therefor.
(d) With respect to one or more Funds, to the extent the Advisor
does not delegate trading responsibility to one or more sub-advisors, in
making decisions regarding broker-dealer relationships, the Advisor may
take into consideration the recommendations of any sub-advisor appointed
to provide investment research or advisory services in connection with the
Funds, and may take into consideration any research services provided to
such sub-advisor by broker-dealers.
(e) Subject to the other provisions of this Section 7, the 1940
Act, the Securities Exchange Act of 1934, and rules and regulations
thereunder, as such statutes, rules and regulations are amended from time
to time or are interpreted from time to time by the staff of the SEC, any
exemptive orders issued by the SEC, and any other applicable provisions of
law, the Advisor may select brokers or dealers with which it or the Funds
are affiliated.
8. Compensation. The compensation that each Fund shall pay the Advisor
is set forth in Appendix B attached hereto.
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9. Expenses of the Funds. All of the ordinary business expenses incurred
in the operations of the Funds and the offering of their shares shall be borne
by the Funds unless specifically provided otherwise in this Agreement. These
expenses borne by the Funds include but are not limited to organizational
expenses, brokerage commissions, interest charges, taxes, legal, accounting,
auditing, or governmental fees, the cost of preparing share certificates,
custodian, transfer and shareholder service agent costs, expenses of issue,
sale, redemption and repurchase of shares, expenses of registering and
qualifying shares for sale, travel and other expenses relating to trustee and
shareholder meetings, insurance, the cost of preparing and distributing reports
and notices to shareholders and regulatory agencies, the fees and other expenses
incurred by the Trust on behalf of the Funds in connection with membership in
investment company trade organizations and the cost of printing copies of
prospectuses and statements of additional information distributed to the Funds'
shareholders.
10. Services to Other Companies or Accounts. The Trust understands that
the Advisor now acts, will continue to act and may act in the future as
investment manager or advisor to fiduciary and other managed accounts, and as
investment manager or advisor to other investment companies, including any
offshore entities, or accounts, and the Trust has no objection to the Advisor so
acting, provided that whenever the Trust and one or more other investment
companies or accounts managed or advised by the Advisor have available funds for
investment, investments suitable and appropriate for each will be allocated in
accordance with a formula believed to be equitable to each company and account.
The Trust recognizes that in some cases this procedure may adversely affect the
size of the positions obtainable and the prices realized for the Funds.
11. Non-Exclusivity. The Trust understands that the persons employed by
the Advisor to assist in the performance of the Advisor's duties under this
Agreement will not devote their full time to such service and nothing contained
in this Agreement shall be deemed to limit or restrict the right of the Advisor
or any affiliate of the Advisor to engage in and devote time and attention to
other businesses or to render services of whatever kind or nature. The Trust
further understands and agrees that officers or directors of the Advisor may
serve as officers or trustees of the Trust, and that officers or trustees of the
Trust may serve as officers or directors of the Advisor to the extent permitted
by law; and that the officers and directors of the Advisor are not prohibited
from engaging in any other business activity or from rendering services to any
other person, or from serving as partners, officers, directors or trustees of
any other firm or trust, including other investment advisory companies.
12. Effective Date, Term and Approval. This Agreement shall become
effective with respect to a Fund, if approved by the shareholders of such Fund,
on the Effective Date for such Fund, as set forth in Appendix A attached hereto.
If so approved, this Agreement shall thereafter continue in force and effect for
a period of two years following the Effective Date, and may be continued from
year to year thereafter, provided that the continuation of the Agreement is
specifically approved at least annually:
(a) (i) by the Board of Trustees or (ii) by the vote of "a
majority of the outstanding voting securities" of such Fund (as defined in
Section 2(a)(42) of the 0000 Xxx); and
(b) by the affirmative vote of a majority of the trustees who are
not parties to this Agreement or "interested persons" (as defined in the
0000 Xxx) of a party to this Agreement (other than as trustees of the
Trust), by votes cast in person at a meeting specifically called for such
purpose.
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13. Termination. This Agreement may be terminated as to the Trust or as
to any one or more of the Funds at any time, without the payment of any penalty,
by vote of the Board of Trustees or by vote of a majority of the outstanding
voting securities of the applicable Fund, or by the Advisor, on sixty (60) days'
written notice to the other party. The notice provided for herein may be waived
by the party entitled to receipt thereof. This Agreement shall automatically
terminate in the event of its assignment; the term "assignment" for purposes of
this paragraph having the meaning defined in Section 2(a)(4) of the 1940 Act.
14. Amendment. No amendment of this Agreement shall be effective unless
it is in writing and signed by the party against which enforcement of the
amendment is sought.
15. Liability of Advisor and Fund. In the absence of willful
misfeasance, bad faith, gross negligence or reckless disregard of obligations or
duties hereunder on the part of the Advisor or any of its officers, directors or
employees, the Advisor shall not be subject to liability to the Trust or to the
Funds or to any shareholder of the Funds for any act or omission in the course
of, or connected with, rendering services hereunder or for any losses that may
be sustained in the purchase, holding or sale of any security. Any liability of
the Advisor to one Fund shall not automatically impart liability on the part of
the Advisor to any other Fund. No Fund shall be liable for the obligations of
any other Fund.
16. Liability of Shareholders. Notice is hereby given that, as provided
by applicable law, the obligations of or arising out of this Agreement are not
binding upon any of the shareholders of the Trust individually but are binding
only upon the assets and property of the Trust and that the shareholders shall
be entitled, to the fullest extent permitted by applicable law, to the same
limitation on personal liability as shareholders of private corporations for
profit.
17. Notices. Any notices under this Agreement shall be in writing,
addressed and delivered, telecopied or mailed postage paid, to the other party
entitled to receipt thereof at such address as such party may designate for the
receipt of such notice. Until further notice to the other party, it is agreed
that the address of the Trust and that of the Advisor shall be 00 Xxxxxxxxxxx
Xxxxx, Xxx Xxxx, XX 00000.
18. Questions of Interpretation. Any question of interpretation of any
term or provision of this Agreement having a counterpart in or otherwise derived
from a term or provision of the 1940 Act or the Advisers Act shall be resolved
by reference to such term or provision of the 1940 Act or the Advisers Act and
to interpretations 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 issued pursuant to said Acts. In addition, where the effect of
a requirement of the 1940 Act or the Advisers Act reflected in any provision of
this Agreement is revised by rule, regulation or order of the SEC, such
provision shall be deemed to incorporate the effect of such rule, regulation or
order. Subject to the foregoing, this Agreement shall be governed by and
construed in accordance with the laws (without reference to conflicts of law
provisions) of the State of New York.
19. License Agreement. The Trust shall have the non-exclusive right to
use the name "Atlantic Whitehall" to designate any current or future series of
shares only so long as Atlantic Trust Advisors, Inc. serves as investment
manager or advisor to the Trust with respect to such series of shares.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their respective officers on the day and year first
written above.
Atlantic Whitehall Funds Trust
(Delaware statutory trust)
Attest:
/s/ Xxxx Xxxxxxxxx By: /s/ Xxxx Xxxxxxx
-------------------------------- ---------------------------------
Secretary Title: President and Principal
Executive Officer
Atlantic Trust Advisors, Inc.
(a New York corporation)
Attest:
/s/ Xxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxx
-------------------------------- ---------------------------------
Secretary Title: President and Chief
Executive Officer
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APPENDIX A
FUNDS AND EFFECTIVE DATES
Name of Fund Effective Date of Advisory Agreement
------------ ------------------------------------
The Atlantic Whitehall
Growth & Income Fund February 14, 2003
The Atlantic Whitehall Growth Fund February 14, 2003
The Atlantic Whitehall Income Fund February 14, 2003
The Atlantic Whitehall High Yield Fund February 14, 0000
X-0
XXXXXXXX X
COMPENSATION TO THE ADVISOR
The Trust shall pay the Advisor, out of the assets of a Fund, as full
compensation for all services rendered, a monthly advisory fee for such Fund, on
the first business day of each month, as set forth below. Such fee shall be
calculated by applying the following annual rates to the average daily net
assets of such Fund for the preceding calendar month computed in the manner used
for the determination of the net asset value of shares of such Fund.
Name of Fund Annual Rate
------------ -----------
The Atlantic Whitehall Growth and Income Fund..........................0.85%*
The Atlantic Whitehall Growth Fund.....................................0.85%*
The Atlantic Whitehall Income Fund.....................................0.65%*
The Atlantic Whitehall High Yield Fund.................................0.75%*
The Advisor has agreed to waive and/or reimburse its management fee for the
period December 1, 2002 through November 30, 2003 to the extent necessary to
maintain each Series of Atlantic Whitehall Funds Trust, net expenses as follows:
Atlantic Whitehall Growth Fund, 1.39%; Atlantic Whitehall Growth and Income
Fund, 1.45%, Atlantic Whitehall High Yield Fund, 0.95% and Atlantic Whitehall
Income Fund, 1.28%.
If the fees payable to the Advisor begin to accrue before the end of any
month or if this Contract terminates before the end of any month, the fees for
the period from that date to the end of that month or from the beginning of that
month to the date of Other termination, as the case may be, shall be prorated
according to the proportiIncome and Expenseson which the period bears to the
full month in which the effectiveness or termination occurs. For purposes of
calculating the monthly fees, the value of the net assets of each Fund shall be
computed in the manner specified in the Prospectus for the computation of net
asset value. For purposes of this Contract, "business day" means each weekday
except those holidays on which the Federal Reserve Bank of New York, the New
York Stock Exchange (the "Exchange") or the Adviser are closed. Currently, those
holidays include: New Year's Day, Xxxxxx Xxxxxx Xxxx, Xx. Day, Presidents' Day,
Good Friday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans'
Day, Thanksgiving and Christmas.
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