INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 20th day of February, 2001, by and between The
Advisors' Inner Circle Fund, a Massachusetts business trust (the "Trust"), and
Toews Corporation, a Delaware 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 each 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 written policies as the Trustees may from time to time
establish, and in compliance with the objectives, policies, and
limitations set forth in the Portfolios' prospectuses and statements
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 each Portfolio and is directed to use its
best efforts to obtain best execution as described from time to time
in the Portfolios' prospectuses, and statements 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 a Portfolio of the Trust to a broker-dealer in compliance
with the provisions of Section 28(e) of the Securities Exchange Act of
1934, as amended 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 is attached hereto and made a part of this
Agreement. Such compensation shall be paid to the Adviser at the end
of each month, in arrears, and calculated by applying a daily rate,
based on the annual percentage rates as specified in the attached
Schedule(s), to the assets of the Portfolio. The fee shall be based on
the average daily net assets of the Portfolio for the preceding month.
Such compensation shall be paid to the Adviser with respect to each
Portfolio within ten (10) days after the end of the preceding month.
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 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 a Portfolio 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; provided that 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 of 1986, as amended. 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 Portfolio provided that if the limitation shall be
applicable on an annual basis. Payment of such expenses shall be
settled on an annual basis. The Trust shall notify the Adviser of each
jurisdiction in which shares of each Portfolio are qualified for offer
and sale and are offered or sold prior to such qualification, offer or
sale.
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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 herein, 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; provided that Adviser
shall be entitled to retain a copy of any and all such records at
Adviser's own expense.
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,
Directors, officers, employees and other agents of the Adviser as well
as Adviser, 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, Directors, 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 U.S. Securities and
Exchange Commission.
11. LICENSE OF THE ADVISER'S NAME. The Adviser hereby agrees to grant a
license to the Trust and each Portfolio for use of its name or names
or any derivative thereof in the name of the Portfolios and such other
portfolios and a license to the Trust
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and each Portfolio for use of domain names, website addresses and URLs
that relate to the Trust and each Portfolio as the Trust and Adviser
may agree upon for the term of this Agreement and such license shall
terminate upon termination of this Agreement. Promptly upon
termination of this Agreement, the Trust and each Portfolio using such
name, names or derivative thereof shall change the name of such
Portfolio to delete any such name, names or derivative thereof.
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 vote of a majority of 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 a 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 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," "control" 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 the 1940 Act.
14. CHANGE IN THE ADVISER'S OWNERSHIP. The Adviser agrees that it shall
notify the Trust of any change in the control 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 One Freedom
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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: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Attest: /S/ ▇▇▇▇▇ ▇▇▇▇
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TOEWS CORPORATION
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attest: /S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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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:
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Toews Corporation S&P 500 Hedged Index Fund 1.00%
Toews Corporation Nasdaq-100 Hedged Index Fund 1.00%
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