Exhibit (d)(xviii) 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 XxXxxxxx, Race & Xxxxx, Inc. (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 MTB Equity Income Fund (the
"Fund");
The Trust and the Adviser have entered into an advisory agreement 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 Trustees of the Trust;
(h) The code of ethics of the Trust which has been approved by the Board of
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 supervision and review 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, 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.
(c) Submit such reports and information relating to the valuation of
the Fund's securities as the Adviser or the Board may reasonably
request.
(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) Adhere to the Adviser's Proxy Voting Policy when voting
securities held in the Fund's portfolio.
(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 or executive officers of the Subadviser (including any
change in the personnel who manage the investments of the Fund.)
(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 0.40% of the value of the average daily net assets of the Fund.
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. Calculations of the Subadviser's fee will be based on
average net asset values as provided to the Subadviser by the Adviser or the
Trust.
In addition to the foregoing, the Subadviser may from time to time
agree in writing not to impose all or a portion of its fee otherwise payable
hereunder (in advance of the time such fee or portion thereof would otherwise
accrue) and/or undertake to pay or reimburse the Fund for all or a portion of
its expenses not otherwise required to be borne or reimbursed by the
Subadviser. Any such fee reduction or undertaking may be discontinued or
modified by the Subadviser at any time.
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 or the Fund for any error of
judgment or mistake of law, subject to the limitations of Section
17(i) of the 1940 Act. Nothing herein, however, shall derogate
from the Subadviser's obligations under federal and state
securities laws. Any person, even though also employed by the
Subadviser, who may be or become an employee of and paid by the
Trust or the Fund shall be deemed, when acting within the scope
of his employment by the Trust or the Fund, to be acting in such
employment solely for the Trust or the Fund and not as the
Subadviser's employee or agent. 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
delivered or mailed by registered mail, postage prepaid, or by
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.
(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: XxXxxxxx, Race & Xxxxx, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Partner
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
XXXXXXXX, RACE & XXXXX, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Partner
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
