Exhibit (d)
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT is made as of the 15th day of October, 1999, by and
between Huntington VA (the "Trust"), a business trust organized under the laws
of the commonwealth of Massachusetts and The Huntington National Bank, a
national banking association (the "Adviser").
WHEREAS, the Trust is registered as an open-end, diversified management
investment company under the Investment Company Act of 1940, as amended; and
WHEREAS, the Trust desires to retain the Adviser to render investment
advisory and other management services for each of its investment portfolios now
in existence or created in the future (collectively, the "Funds") on the terms
and conditions set forth;
NOW THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties agree as follows:
1. EMPLOYMENT OF THE ADVISER. The Trust, being duly authorized, hereby
appoints the Adviser to act as investment adviser to the Trust for the Funds
listed on Exhibit A for the period and on the terms set forth in this Agreement.
The Adviser accepts such employment and agrees to render the services herein set
forth for the compensation herein provided.
2. MANAGEMENT. Subject to the supervision and direction of the Board of
Trustees of the Trust (the "Trustees"), the Adviser will provide a continuous
program for the Funds, including, but not limited to, investment research and
management with respect to all securities, investments, cash and cash
equivalents in the Funds. The Adviser will determine, from time to time, what
securities and other instruments will be purchased, retained or sold by the
Trust for the Funds. The Adviser will provide the services rendered by it in
accordance with the Fund's investment objectives and policies as stated in the
Prospectus which is a part of the Trust's effective Registration Statement as
amended from time to time. The Adviser agrees that it:
(a) will conform with all applicable Rules and Regulations of the
Securities and Exchange Commission (herein called the "Rules") and with the
Securities Act of 1933, the Securities Exchange Act of 1934, the Investment
Company Act of 1940 and the Investment Advisers Act of 1940, all as amended, and
will conduct its activities under this Agreement in accordance with all
applicable Rules and Regulations of the Comptroller of the Currency pertaining
to the investment advisory activities of national banks;
(b) will place orders pursuant to its investment determinations for the
Funds, either directly with the issuer of the instrument to be purchased or with
any broker or dealer selected by it. In placing orders with brokers and dealers,
the Adviser will use its best reasonable efforts to obtain the best net price
and execution of its orders, after taking into account all factors it deems
relevant, including the breadth of the market in the security, the price of the
security, the financial condition and execution capability of the broker or
dealer, and the reasonableness of the commission, if any, both for the specific
transaction and on a continuing basis. However, this responsibility shall not be
deemed to obligate the Adviser to solicit competitive bids for each transaction.
Consistent with this obligation, the Adviser may, to the extent permitted by
law, purchase and sell portfolio securities to and from brokers and dealers who
provide brokerage and research services (as those terms were defined in Section
28(e) of the Securities Exchange Act of 1934) statistical quotations,
specifically, the quotations necessary to determine the Fund's net asset value,
and other information provided to the Funds or to the Adviser or its affiliates
to or for the benefit of the Funds and/or other accounts over which the Adviser
or any of its affiliates exercises investment discretion. Subject to the review
of the Trustees from time to time with respect to the extent and continuation of
the policy, the Adviser is authorized to pay to a broker or dealer who provides
such brokerage and research services a commission for effecting a securities
transaction for the Funds which is in excess of the amount of commission another
broke or dealer would have charged for effecting the transaction if the Adviser
determines in good faith that such commission was reasonable in relation to the
value of the brokerage and research services provided by such broker or dealer,
viewed in terms of either that particular transaction or the overall
responsibilities of the Adviser with respect to the accounts as to which it or
its affiliates exercise investment discretion; and
(c) will maintain books and records with respect to the securities
transactions of the Funds and will render to the Trustees such periodic and
special reports as the Trustees may reasonably request.
3. SERVICES NOT EXCLUSIVE. The investment management services rendered
by the Adviser under this Agreement are not to be deemed exclusive, and the
Adviser shall be free to render similar services to others as its services under
this Agreement are not impaired thereby. The Adviser shall provide fair and
equitable treatment to the Funds in the selection of portfolio instruments and
the allocation of investment opportunities; the Adviser is not required to give
the Funds preferential treatment.
4. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3
promulgated under the Investment Company Act of 1940, as amended, the Adviser
hereby agrees that all records which it maintains for the Funds 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 Adviser further agrees to preserve for the
periods proscribed by Rule 31a-2 the records required
to be maintained by Rule 31a-1 and to comply in full with the requirements of
Rule 204-2 under the Investment Advisers Act of 1940, pertaining to the
maintenance of books and records.
5. EXPENSES. During the term of this Agreement, the 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
and taxes, if any) or other investment instruments purchased for the Funds.
6. COMPENSATION. For the services provided and the expenses assumed,
pursuant to this Agreement, the Trust will pay the Adviser, and the
Adviser will accept as full compensation, the fees set forth in Exhibit A.
7. LIMITATION OF LIABILITY OF THE ADVISER; INDEMNIFICATION.
(a) The Adviser will not be liable for any error of judgment or
mistake of law or for any loss suffered by the Trust in connection with the
matters to which this Agreement relates, except a loss resulting from a breach
of fiduciary duty with respect to the receipt of compensation for services or
a loss resulting from willful malfeasance, bad faith or gross negligence on the
part of the Adviser in the performance of its duties or from reckless disregard
by it of its obligations and duties under this Agreement.
(b) Subject to the limitations contained in Section 7(c) below:
(i) the Trust shall indemnify and hold harmless the Adviser,
its directors, officers, employees and each person who controls the Adviser
(hereinafter referred to as "Covered Persons") to the fullest extent permitted
by law, against any and all claims, demands and liabilities (and all reasonable
expenses in connection therewith) to which the Adviser or any of its directors,
officers, employees or controlling persons may become subject by virtue of the
Adviser being or having been the Adviser of the Trust;
(ii) the words "claims", "actions", "suits", or "proceedings"
shall apply to all claims, actions, suit or proceedings (civil, criminal or
other, including appeals), actual or threatened while in office or thereafter,
and the words "liabilities" and "expenses" shall include, without limitation,
attorneys' fees and expenses, costs, judgments, amounts paid in settlement,
fines, penalties and other liabilities.
(c) No indemnification shall be provided hereunder to a Covered
Person:
(i) who shall have been adjudicated by a court or body before
which the proceedings was brought (A) to be liable to the Trust or its
Shareholders by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of its office or (B)
not to have acted in good faith in the reasonable relief that its action was in
the best interest of the Trust; or
(ii) in the event of a settlement, unless there has been a
determination that such Covered Person did not engage in willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of his office,
(A) by the court of other body approving the settlement; or
(B) by at least a majority of those Trustees who are
neither "interested persons" of the Trust (as defined in the Investment Company
Act of 1940, as amended) nor are parties to the matter, based upon a review of
readily available facts (as opposed to a full trial-type inquiry); or
(C) by written opinion of independent legal counsel based
upon a review of readily available facts (as opposed to a full trial-type
inquiry).
(d) The rights of indemnification herein provided may be insured
against by policies maintained by the Trust, shall be severable, shall not be
exclusive of or affect any other rights to which any Covered Person may now or
hereafter be entitled, shall continue as to a person who has ceased to be a
Covered Person and shall inure to the benefit of the personal representatives,
successors and assigns of each such person. Nothing contained herein shall
affect any rights to indemnification to which Trust personnel and any other
persons, other than a Covered Person, may be entitled by contract or otherwise
by law.
(e) Expenses in connection with the investigation, preparation and
presentation of a defense to any claim, suit or proceeding of the character
described in subsection (b) of this Section 7 shall be paid by the Trust or by
the Funds, from time to time, prior to final disposition thereof, upon receipt
of an undertaking by or on behalf of such Covered Person that such amount will
be paid over by him to the Trust or the Funds if it is ultimately determined
that he is not entitled to indemnification under this Section 7; provided,
however, that either (i) such Covered Person shall have provided appropriate
security for such undertaking, (ii) the Trust shall be insured against losses
arising out of any such advance payments, or (iii) either a majority of the
Trustees who are neither "interested persons" of the Trust nor parties to the
matter, or independent legal counsel in a written opinion, shall have
determined, based upon a review of readily available facts (as opposed to a
trial-type inquiry), that there is reason to believe that such Covered Person
will be entitled to indemnification under this Section 7.
8. DURATION AND TERMINATION. This Agreement shall be effective as of
the date on which the registration statement on Form N-1A for the Trust is
declared effective and, unless sooner terminated as provided herein, shall
continue until October 15, 2001. Thereafter, if not
terminated, this Agreement shall continue in effect as to the Funds for
successive periods of 12 months each, provided such continuance is specifically
approved at least annually (a) by the vote of a majority of those Trustees 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 the Trustees or, with respect to the Funds, by the vote of a majority of
the outstanding voting securities of the Funds; provided, however, that this
Agreement may be terminated by the Trust as to the Funds at any time, without
the payment of any penalty, by the Trustees, or, with respect to the Funds, by
vote of a majority of the outstanding voting securities of the Funds on 60 days'
written notice to the Adviser, or by the Adviser as to the Funds at any time,
without payment of any penalty, on 90 days' written notice to the Trust. This
Agreement will immediately terminate in the event of its assignment by either
party hereto or by operation of law. (As used in this Agreement, the terms
"majority of the outstanding voting securities," "interested person" and
"assignment" shall have the same meanings as such terms have in the Investment
Company Act of 1940, as amended.)
9. 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, and no amendment of this Agreement shall be
effective with respect to a Fund until approved by vote of a majority of that
Fund's outstanding voting securities.
10. (A) REPRESENTATIONS AND WARRANTIES. The Adviser hereby represents
and warrants as follows:
(1) The Adviser is exempt from registration under the
Investment Advisers Act of 1940, as amended;
(2) The Adviser has all requisite authority to enter into,
execute, deliver and perform its obligations under this Agreement;
(3) This Agreement is the legal, valid and binding obligation
of the Adviser, and is enforceable in accordance with its terms; and
(4) The performance of the Adviser of its obligations under
this Agreement does not conflict with any law or regulation to which it is
subject.
(B) COVENANTS. The Adviser covenants and agrees that, so long as
this Agreement shall remain in effect, (1) the Adviser shall remain exempt from
registration or shall become registered under the Investment Advisers Act of
1940; and (2) the performance by the Adviser of its obligations under this
Agreement shall not conflict with any law to which it is then subject.
(C) The Trust hereby covenants and agrees that, so long as this
Agreement shall remain in effect, it shall furnish the Adviser from time to time
with copies of the following documents, if and when effective, pertaining to the
Trust or the Funds and all amendments and supplements thereto: Declaration of
Trust, By-Laws, Registration Statement on Form N-1A and post-effective
amendments thereto (including all Prospectuses and Statements of Additional
Information), Custodian Contract, Transfer Agency and Service Agreement,
Administration Agreement, Distribution Agreement, Rule 12b-1 Distribution and
Service Plan (if any), proxy statements and any other documents filed with the
Securities and Exchange Commission, state securities law administrators or other
governmental agencies, and any other documents the Adviser may reasonably
request.
11. NOTICES. Any notice required to be given pursuant to this
Agreement shall be deemed duly given if delivered or mailed by registered
mail, postage prepaid to the Adviser at 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxx 00000.
12. WAIVER. With full knowledge of the circumstances and the effect of
its action, the Adviser hereby waives any and all rights which it may acquire in
the future against the property of any shareholder of the Trust, other than
shares of the Trust at their net asset value, which arise out of any action or
inaction of the Trust under this Agreement.
13. CAPTIONS. The captions in this Agreement are included for
convenience or reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
14. SEVERABILITY. If any provision of this Agreement shall be
held or made invalid or unenforceable by a court decision, statute, rule
or otherwise, the remainder shall not be thereby affected.
15. BINDING EFFECT. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors.
16. GOVERNING LAW. This Agreement is executed in the state of
Ohio, and shall be governed by the laws of such state, without reference
to conflict of laws principles.
IN WITNESS WHEREOF, the Trust and the Adviser have caused this
Agreement to be executed on the day and year first above written.
HUNTINGTON VA FUNDS
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx
President
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
Senior Vice President
