Exhibit (d)(xvii) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
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 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/ 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
