EXHIBIT (d)(1)
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
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AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of February 1, 2001, as amended and restated on May
23, 2003, between BB&T Funds, a Massachusetts business trust (hereinafter called
the "Trust"), and BB&T Asset Management, Inc., a wholly owned subsidiary of
Branch Banking & Trust Company (hereinafter called the "Investment Adviser").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended ("1940 Act"); and
WHEREAS, the Trust desires to retain the Investment Adviser to furnish
certain investment advisory and related services described below in connection
with the management of each of the investment portfolios of the Trust identified
on Schedule A hereto (the "Funds"), and the Investment Adviser represents that
it is willing and possesses legal authority under the ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Act to so
furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Trust hereby appoints the Investment Adviser
to act as investment adviser to the Funds for the period and on the terms set
forth in this Agreement. The Investment Adviser accepts such appointment and
agrees to furnish the services herein set forth for the compensation herein
provided.
2. Delivery of Documents. The Trust has furnished the Investment
Adviser with copies properly certified or authenticated of each of the following
documents:
(a) the Trust's Agreement and Declaration of Trust, dated
October 1, 1987, as amended, and filed with the Secretary of State of The
Commonwealth of Massachusetts, and all amendments thereto or restatements
thereof (such Agreement and Declaration of Trust, as presently in effect and as
it shall from time to time be amended or restated, is herein called the
"Declaration of Trust");
(b) the Trust's Bylaws and amendments thereto;
(c) resolutions of the Trust's Board of Trustees authorizing
the appointment of the Investment Adviser and approving this Agreement;
(d) the Trust's original Notification of Registration on Form
N-8A under the 1940 Act as filed with the Securities and Exchange Commission on
June 30, 1992 and all amendments thereto;
(e) the Trust's current Registration Statement on Form N-lA
under the Securities Act of 1933, as amended ("1933 Act"), and under the 1940
Act as filed with the Securities and Exchange Commission; and
(f) the Funds' most recent prospectuses and the Trust's
Statement of Additional Information relating to the Funds (such prospectuses and
Statement of Additional Information, as presently in effect, and all amendments
and supplements thereto are herein collectively called the "Prospectus").
The Trust will promptly furnish the Investment Adviser with copies of
all amendments of or supplements to the foregoing documents.
3. Management. Subject to the supervision of the Trust's Board of
Trustees, the Investment Adviser will provide or cause to be provided a
continuous investment program for each Fund identified on Schedule A hereto,
including investment research and management with respect to all securities and
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investments and cash equivalents in such Funds. The Investment Adviser will
determine or cause to be determined from time to time what securities and other
investments will be purchased, retained or sold by the Trust with respect to
each Fund identified on Schedule A hereto and will place or cause to be placed
orders for purchase and sale on behalf of the Trust with respect to such Fund.
The Investment Adviser will provide the services under this Agreement
in accordance with each Fund's investment objective, policies and restrictions
as stated in the Prospectuses, resolutions of the Trust's Board of Trustees, and
any undertakings with state or other regulatory authorities which are provided
by the Trust to the Investment Adviser. The Investment Adviser further agrees
that it:
(a) will use the same skill and care in providing such
services as it uses in providing services to fiduciary accounts for which it has
investment responsibilities;
(b) will comply in all material respects with all applicable
Rules and Regulations of the Securities and Exchange Commission under the
Investment Company Act of 1940 and in addition will conduct its activities under
this Agreement in accordance with any applicable regulations pertaining to the
investment advisory activities of the Investment Adviser;
(c) will not make loans to any person to purchase or carry
units of beneficial interest ("shares") in the Trust or make loans to the Trust;
(d) will place or cause to be placed orders for the Funds
identified on Schedule A hereto either directly with the issuer or with any
broker or dealer and, in placing orders with brokers and dealers, the Investment
Adviser or any sub-investment adviser employed by the Investment Adviser will
attempt to obtain prompt execution of orders in an effective manner at the most
favorable price. Consistent with this obligation, when the execution and price
offered by two or more brokers or dealers are comparable, the Investment Adviser
or any sub-investment adviser employed by the Investment Adviser may, in its
discretion, purchase and sell portfolio securities to and from brokers and
dealers who provide the Investment Adviser or any such subinvestment adviser
with research advice and other services. In no instance will portfolio
securities be purchased from or sold to BISYS Fund Services, Inc., the
Investment Adviser, any sub-investment adviser employed by the Investment
Adviser, or any affiliated person (as defined in the Investment Company Act of
1940) of either the Trust, BISYS Fund Services, Inc., the Investment Adviser, or
any sub-investment adviser employed by the Investment Adviser.
(e) will treat confidentially and as proprietary information
of the Trust all records and other information relative to the Trust and prior,
present, or potential shareholders of the Trust learned by, or disclosed to, the
Investment Adviser in the course of its performance of its responsibilities and
duties under this Agreement, and will not use such records and information for
any purpose other than performance of its responsibilities and duties hereunder,
except after prior notification to and approval in writing by the Trust, which
approval shall not be unreasonably withheld and may not be withheld where the
Investment Adviser may be exposed to civil, regulatory, or criminal sanctions
for failure to comply when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust; and
(f) will maintain its policy and practice of conducting its
fiduciary functions independently. In making investment recommendations for the
Trust, the Investment Adviser's personnel will not inquire or take into
consideration whether the issuers of securities proposed for purchase or sale
for the Trust's account are customers of the Investment Adviser, or the parents
or subsidiaries or affiliates of the Investment Adviser unless so required by
applicable law. In dealing with its customers, the Investment Adviser and its
parents, subsidiaries, and affiliates will not inquire or take into
consideration whether securities of those customers are held by the Trust.
4. Use of Sub-Investment Adviser. The Investment Adviser may,
subject to the approvals required under the 1940 Act, employ a sub-investment
adviser to assist the Investment Adviser in the performance of its duties under
this Agreement. Such use does not relieve the Investment Adviser of any duty or
liability it would otherwise have under this Agreement. Compensation of any such
sub-investment
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adviser for services provided and expenses assumed under any agreement between
the Investment Adviser and such sub-investment adviser permitted under this
paragraph is the sole responsibility of the Investment Adviser.
5. Master/Feeder Arrangements. Notwithstanding paragraph 3 and
Schedule A hereof, the Investment Adviser may invest all of the assets of a fund
commencing operations on or after May 4, 2000 in the shares of an investment
company that has an investment objective substantially similar to that of the
investing fund (a "Master Fund"). When such an investment has been made, the
Adviser shall have no day-to-day management responsibilities regarding the fund
so invested, but shall have general oversight and shall advise the Board of
Trustees of the Trust if investment in the Master Fund is no longer an
appropriate means of achieving the investing fund's investment objective. The
Investment Adviser shall be entitled to no fee with respect to assets invested
in a Master Fund.
6. Services Not Exclusive. The investment management services
furnished by the Investment Adviser hereunder are not to be deemed exclusive.
Except to the extent necessary to perform the Investment Adviser's obligations
under this Agreement, nothing herein shall be deemed to limit or restrict the
right of the Investment Adviser, or any subsidiary or affiliate of the
Investment Adviser, or any employee of the Investment Adviser, to engage in any
other business or to devote time and attention to any other business, whether of
a similar or dissimilar nature, or to render services of any kind to any other
person.
7. Books and Records. In compliance with the requirements of Rule
3la-3 under the 1940 Act, the Investment Adviser hereby agrees that all records
which it maintains for the Trust are the property of the Trust and further
agrees to surrender promptly to the Trust any of such records upon the Trust's
request. The Investment Adviser further agrees to preserve for the periods
prescribed by Rule 3la-2 under the 1940 Act the records required to be
maintained by Rule 3la-1 under the 1940 Act.
8. Expenses. During the term of this Agreement, the Investment
Adviser will pay all expenses incurred by it in connection with its activities
under this Agreement other than the cost of securities (including brokerage
commissions or charges, if any) purchased for the Trust. The Trust will be
responsible for all of the Trust's expenses and liabilities.
9. Compensation. For the services provided and the expenses
assumed pursuant to this Agreement, each of the Funds will pay the Investment
Adviser and the Investment Adviser will accept as full compensation therefor a
fee computed daily and paid monthly on the first business day of each month
equal to the lesser of (i) the fee at the applicable annual rate set forth on
Schedule A hereto or (ii) such fee as may from time to time be agreed upon in
writing by the Trust and the Investment Adviser. If the fee payable to the
Investment Adviser pursuant to this paragraph begins to accrue after the
beginning of any month or if this Agreement terminates before the end of any
month, the fee for the period from such date to the end of such month or from
the beginning of such month to the date of termination, as the case may be,
shall be prorated according to the proportion which such period bears to the
full month in which such effectiveness or termination occurs. For purposes of
calculating fees, the value of a Fund's net assets shall be computed in the
manner specified in the Prospectus and the Trust's Declaration of Trust for the
computation of the value of the Fund's net assets in connection with the
determination of the net asset value of the Fund's shares.
If in any fiscal year the aggregate expenses (as defined under the
securities regulations of any state having jurisdiction over the Trust) of any
of the Funds of the Trust exceed the expense limitations of any such state, the
Investment Adviser will make payment to the Trust for a portion of such excess
expenses equal to such excess times the ratio of the aggregate fees otherwise
payable by the Fund to the Investment Adviser under this Investment Advisory
Agreement to the aggregate fees otherwise payable by the Fund (1) to the
Investment Adviser under this Investment Advisory Agreement with the Trust and
(2) to BISYS Fund Services, Inc. under the Management and Administration
Agreement between BISYS Fund Services, Inc., and the Trust. The obligation of
the Investment Adviser to make payment to the Trust hereunder is limited in any
fiscal year to the amount of the fee received by the Investment Adviser from the
Fund for investment advisory or consulting services for such fiscal year,
provided, however, that notwithstanding the
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foregoing, the Investment Adviser shall make payment to the Trust for such
proportion of such excess expenses regardless of the amount of fees received by
it during such fiscal year to the extent that the securities regulations of any
state having jurisdiction over the Trust so require. Such expense reimbursement,
if any, will be estimated daily and reconciled and paid on a monthly basis.
10. Limitation of Liability. The Investment Adviser shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Funds in connection with the performance of this Agreement, except a loss
resulting from a breach of fiduciary duty under the Investment Company Act of
1940 with respect to the receipt of compensation for services or a loss
resulting from willful misfeasance, bad faith or gross negligence on the part of
the Investment Adviser in the performance of its duties or from reckless
disregard by it of its obligations and duties under this Agreement. In no case
shall the Investment Adviser be liable for actions taken or nonactions with
respect to the performance of services under this Agreement based upon specific
information, instructions, or requests given or made to the Investment Adviser
by an officer of the Trust thereunto duly authorized. Any suggested limitations
on liability shall not relieve the Adviser from any responsibility or liability
the Adviser may have under federal statutes.
11. Duration and Termination. This Agreement will become effective
as to a particular Fund as of the date first written above, provided that it
shall have been approved by vote of a majority of the outstanding voting
securities of such Fund, in accordance with the requirements under the 1940 Act,
and, unless sooner terminated as provided herein, shall continue in effect until
September 30, 2001. Thereafter, if not terminated, this Agreement shall continue
in effect as to a particular Fund for successive periods of twelve months each
ending on September 30 of each year, provided such continuance is specifically
approved at least annually (a) by the vote of a majority of those members of the
Trust's Board of Trustees who are not parties to this Agreement or interested
persons of any party to this Agreement, cast in person at a meeting called for
the purpose of voting on such approval, and (b) by the vote of a majority of the
Trust's Board of Trustees or by the vote of a majority of the outstanding voting
securities of such Fund. Notwithstanding the foregoing, this Agreement may be
terminated as to a particular Fund at any time on sixty days' written notice,
without the payment of any penalty, by the Trust (by vote of the Trust's Board
of Trustees or by vote of a majority of the outstanding voting securities of
such Fund) or by the Investment Adviser. This Agreement will immediately
terminate in the event of its assignment. (As used in this Agreement, the terms
"majority of the outstanding voting securities", "interested persons" and
"assignment" shall have the same meaning of such terms in the 1940 Act.)
12. Amendment of this Agreement. No provision of this Agreement
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
13. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
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.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and shall be governed by the
laws of The Commonwealth of Massachusetts.
The names "BB&T Funds" and "Trustees of BB&T Funds" refer respectively
to the Trust created and the Trustees, as trustees but not individually or
personally, acting from time to time under an Agreement and Declaration of Trust
dated as of October 1, 1987, as amended, to which reference is hereby made and a
copy of which is on file at the office of the Secretary of State of The
Commonwealth of Massachusetts and elsewhere as required by law, and to any and
all amendments thereto so filed or hereafter filed. The obligations of "BB&T
Funds" entered into in the name or on behalf thereof by any of the Trustees,
representatives or agents are made not individually, but in such capacities, and
are not binding upon any of the Trustees, shareholders or representatives of the
Trust personally, but bind only the assets of
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the Trust, and all persons dealing with any series of shares of the Trust must
look solely to the assets of the Trust belonging to such series for the
enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
BB&T Funds
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
BB&T Asset Management, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: President
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