ITEM 77Q(e)(v) - COPIES OF ANY
NEW OR AMENDED REGISTRANT INVESTMENT ADVISORY
CONTRACTS
SUBADVISORY AGREEMENT
This Subadvisory Agreement
("Agreement") is entered into as of October 24, 2005, by and
among the MTB Group of Funds, a Delaware
statutory trust (the "Trust"), MTB Investment Advisors,
Inc., a Maryland corporation (the "Adviser"),
and LSV Asset Management (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-five portfolios, including the MTB
International Equity Fund (the "Fund");
The Trust and the Adviser have entered
into advisory agreements, each dated as of August 22,
2003 (the "Advisory Agreement") as amended,
pursuant to which the Adviser provides portfolio
management services to the Fund and the other
portfolios of the Trust;
The Advisory Agreement contemplates
that the Adviser may fulfill its portfolio management
responsibilities under the Advisory Agreement
by engaging one or more subadvisers; and
The Adviser and the Board of Trustees
of the Trust ("Trustees" or "Board") desire to retain the
Subadviser to act as sub-investment manager
of the Fund and to provide certain other services, and the
Subadviser desires to perform such services
under the terms and conditions hereinafter set forth.
Agreement:
NOW, THEREFORE, in consideration of
the mutual covenants and agreements set forth in this
Agreement, the Trust, the Adviser and
the Subadviser agree as follows:
1. Delivery of Documents. The Trust
and/or the Adviser has furnished the Subadviser with copies,
properly certified or otherwise authenticated,
of each of the following:
(a) The Trust's Agreement and Declaration
of Trust ("Declaration of Trust"), as in effect on
the date hereof;
(b) By-Laws of the Trust as in effect
on the date hereof;
(c) Resolutions of the Trustees selecting
the Subadviser as the sub-investment manager to the
Fund and approving the form of this Agreement;
(d) Resolutions of the Trustees selecting
the Adviser as investment adviser to the Fund and
approving the form of the Investment Advisory
Agreement and resolutions adopted by
the initial shareholder of the Fund approving
the form of the Investment Advisory
Agreement;
(e) The Advisory Agreement;
(f) The Trust's current registration
statement on Form N-1A as filed with the Securities and
Exchange Commission ("SEC"), including
the Fund's current prospectus and statement
of additional information (collectively
called the "Prospectus");
(g) All current written guidelines,
policies and procedures of the Trust, which are applicable
to the Fund, the Adviser or the
Subadviser and have been approved by the Board of
Trustees of the Trust;
(h) The code of ethics of the Trust
which has been approved by the Trustees of the Trust in
accordance with Rule 17j-1 under the 1940 Act;
(i) The Adviser's most recent Form ADV
as filed with the SEC and/or provided to the
Adviser's clients (which Form ADV includes,
among other things, a description of the
Adviser's policies regarding allocation of
securities among clients with common
investment objectives, soft dollars and
brokerage selection);
(j) Those provisions of the Adviser's
Compliance Manual that apply to the Fund;
(k) A copy of the Adviser's Proxy
Voting Policies and Procedures; and
(l) The Trust's Anti-Money Laundering
Policies and Procedures.
The Adviser will promptly furnish
the Subadviser from time to time with copies, properly
certified or otherwise authenticated, of
all amendments of or supplements to any of the foregoing
documents. The Adviser will also furnish
the Subadviser with copies of all the documents listed on
Schedule 1 to this Agreement, and shall
promptly notify the Subadviser of any material
change in any of
the Fund's investment objectives, investment
strategies, investment policies, investment restrictions,
guidelines or procedures set forth in any of
the documents listed in Schedule 1. In addition, the Chief
Compliance Officer for the Trust and the
Adviser shall provide the Subadviser with
a certification that
they have adopted and approved a compliance
program for the Trust adopted in accordance with Rule
38a-1 under the 1940 Act and the compliance
program for the Adviser adopted in accordance with Rule
206(4)-7 under the Investment Advisers Act
of 1940, as amended ("Advisers Act"), respectively.
The Chief Compliance Officer for the
Subadviser shall provide the Trust and the Adviser with
copies of the Subadviser's Compliance Policies
and Procedures, a summary of its compliance program,
and a certification that the Subadviser has
adopted and approved a compliance program for the
Subadviser in accordance with Rule 206(4)-7
under the Advisers Act and such other information as may
be reasonably requested in order to permit
the Board of Trustees of the Trust to make such determinations
with respect to the Subadviser's compliance
program as may be required under Rule 38a-1 under the 1940
Act. The Subadviser has furnished the Adviser
with a copy of the Subadviser's Form ADV most recently
filed with the SEC, (which Form ADV includes a
description of the Subadviser's policies regarding
allocation of securities among clients with
common investment objectives, soft dollars and
brokerage
selection) and the code of ethics established by
the Subadviser pursuant to Rule 17j-1 under the 1940 Act
("Subadviser's Code of Ethics"). The Subadviser
will promptly furnish the Adviser with copies of any
amendments to each of those documents, including
any revisions required by Rule 204A-1 under the
Advisers Act. The Subadviser will also provide
the Adviser with the Subadviser's approved list of
securities for equity portfolios and list of
affiliated persons, and any updates or
revisions thereto at least
monthly.
The Subadviser will also provide the
Adviser and the Fund accountant with a list and specimen
signatures of the parties who are authorized
to act on behalf of the Subadviser and will promptly notify
Adviser in writing of any changes to that list.
2. Investment Services. Subject to the
oversight of the Adviser and the Trustees, the Subadviser
will manage the portion of the Fund's assets
allocated to the Subadviser from time to time
by the Adviser
in its sole discretion ("Assets) on a discretionary
basis, including the purchase, retention and disposition
of securities, as the Fund's agent and attorney-
in-fact with full power and authority in connection with
such assets and in a manner that is (a) consistent
with the investment objectives, investment strategies,
investment policies and restrictions of the Fund as
set forth in the Fund's Prospectus, (b) in conformity
with the 1940 Act, (c) compliant with the requirements
applicable to regulated investment companies
under the Internal Revenue Code of 1986, as amended,
and (d) compliant with all other applicable federal
securities laws and regulations, instructions and
directions received by the Subadviser in writing from the
Adviser or the Board of Trustees, and all applicable
provisions in the documents provided to the
Subadviser, pursuant to Section 1 above, as each of
the documents may, from time to time, be amended or
supplemented.
The Subadviser will discharge its duties under
this Agreement with the care, skill, prudence, and
diligence under the circumstances then prevailing that
a prudent person acting in the capacity of an
investment adviser to a registered investment Trust and
familiar with such matters would use.
The Subadviser will, at its own expense, and
subject to the oversight of the Adviser and the Board
of Trustees:
(a) Manage on a discretionary basis the Assets and
determine from time to time which
securities will be purchased, retained, sold or loaned
by the Fund.
(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 information relating to the
valuation of the Assets as the Adviser or the Board
may reasonably request. The Trust, the
Fund and the Adviser agree and acknowledge
that Subadviser is not a pricing agent
for the Fund or the Trust and shall not be liable for
any valuation determined or adopted by
the Trust or the Fund, the Fund's custodian
and/or portfolio accounting agent in
accordance with any information provided by the
Subadviser, subject to the provisions
of Section 10(a).
(d) Maintain all accounts, books and
records pertaining to the Assets ("Fund Assets' 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 Assets'
Books and
Records shall be available for inspection or
duplication by the Adviser and the Trust on
any day that the Fund is open for business,
upon reasonable request, and shall be
available for telecopying to the Adviser or
the Trust on any such business day.
(e) Unless otherwise directed by Adviser
in writing, take action, in accordance with
Adviser's Proxy Voting Policy, with respect
to matters submitted to a vote of holders of
voting securities comprising the Assets, and
provide Adviser with information on
securities voted by Subadviser promptly after
the vote occurs. Adviser shall be solely
responsible for making all required filings of
Form N-PX with the appropriate regulatory
bodies.
(f) From time to time, as the Adviser or
the Trustees may reasonably request, furnish the
Adviser and to each of the Board members
reports of Fund's securities transactions with
respect to the Assets and reports on
securities comprising the Assets, 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 Assets or (ii) key investment
officers of the Subadviser substantially
involved in managing the Assets or (iii)
Subadviser's president, chief executive
officer, chief financial officer, chief
operating
officer or chief compliance officer, or
the persons performing the functions of any such
office for Subadviser.
(h) Make its officers and employees
available to meet with the Trustees and
the Adviser at
such times and with such frequency as the
Trustees or the Adviser reasonably request, on
due notice to the Subadviser, but at least
annually, to review the Fund's investment of the
Assets 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 Assets 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 xxx
xxxx 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 0.49% of the
average daily net asset value of the Assets. Such fee shall
accrue daily and be paid monthly. The "average
aily net assets" of the Assets shall be determined on the
basis set forth in the Fund's Prospectus or, if
not described therein, on such basis as is consistent with
Rule 2a-4 and Rule 22c-1 under the 1940 Act and
the regulations promulgated thereunder. The
Subadviser will receive a pro rata portion of
such monthly fee for any periods in which the Subadviser
advises the Fund less than a full month. The
Subadviser understands and agrees that neither the Trust nor
the Fund has any liability for the payment of
Subadviser's fee hereunder and that the payment
of fees
owed to the Subadviser shall be the sole
responsibility of the Adviser.
7. Other Activities of the Subadviser and
Its Affiliates. It is understood that the services under
this Agreement are not exclusive and that
nothing in this Agreement shall prevent the Subadviser or any
of its affiliates or associates from engaging in
any other business or from acting as investment adviser or
manager for any other person or entity or
providing similar services to any other person or entity, whether
or not having investment policies or a portfolio
similar to the Fund. It is specifically understood that
officers, trustees/directors and employees of the
Subadviser and those of its affiliates may engage in
providing portfolio management services and advice
to other investment advisory clients of the
Subadviser or of its affiliates.
8. Avoidance of Inconsistent Position. In
connection with purchases or sales of portfolio securities
for the account of the Fund with respect to the
Assets, 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, with respect to the
Assets, 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, with respect to the Assets. The Subadviser
shall have no obligation to acquire with respect
to the Assets, 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, with respect to the Assets, 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 Assets is also to be purchased or sold
for other accounts managed by the Subadviser at
the same time, the Subadviser shall make such purchase
or sale on a pro-rata, rotating or other fair and
equitable basis so as to avoid any one account being
preferred over any other account. The Subadviser
shall disclose to the Adviser and to the Trustees the
method used to allocate purchases and sales among
the Subadviser's investment advisory clients. It is
further understood that the Subadviser may, but
shall not be obligated to, aggregate the orders for
securities to be purchased or sold.
9. No Partnership or Joint Venture. The Trust,
the Fund, the Adviser and the Subadviser are not
partners of or joint venturers with each other and
nothing herein shall be construed so as to make them
such partners or joint venturers or impose any
liability as such on any of them.
10. Limitation of Liability and Indemnification.
(a) In the absence of (i) willful misfeasance,
bad faith, or gross negligence on the part of the
Subadviser or reckless disregard of its duties, (ii)
the failure to disclose to the Adviser a
material fact regarding the Subadviser or its
investment advisory services as they relate to
the Fund; (iii) the failure to correct any untrue
statement of a material fact regarding the
Subadviser made by the Subadviser to the Adviser,
or (iv) the reckless disregard by the
Subadviser of its obligations and duties under this
Agreement, the Subadviser shall not be
subject to any liability to the Adviser, the Trust or
the Fund, any shareholder of the Fund,
or to any person, firm or organization, for any act
or omission in the course of or in
connection with rendering its services under this
Agreement. Specifically, the
Subadviser shall not be liable to the Adviser,
the Trust or the Fund for any error of
judgment or mistake of law, subject to the
limitations of Section 17(j) of the 1940 Act.
Nothing herein, however, shall derogate from
the Subadviser's obligations under federal
and state securities laws. Subadviser will
maintain a reasonable amount of fidelity bond
insurance coverage and shall provide evidence
of such coverage upon request of Adviser.
(b) In the absence of (i) willful
misfeasance, bad faith or gross negligence
on the part of the
Adviser or reckless disregard of its duties,
(ii) the failure of the Adviser to disclose in the
Prospectus or any filing made with the SEC
with respect to the Trust, the Fund or the
Adviser any material fact; (iii) the failure
by the Adviser to correct any untrue statement
of a material fact contained in the Prospectus
or any other filing made with the SEC
regarding the Trust, the Fund or the Adviser;
or (iv) the reckless disregard by the Adviser
of its obligations and duties under this
Agreement, Adviser shall not be subject to any
liability to Subadviser for any act or omission
in the course of or in connection with the
Adviser's carrying out its duties and
obligations under this Agreement. Specifically, the
Adviser shall not be liable to the Subadviser
for any error of judgment or mistake of law.
Nothing herein, however, shall derogate from
the Adviser's obligations under federal and
state securities laws.
(c) Subadviser and Adviser shall each
defend, indemnify and hold harmless the other party
and the other party's affiliates, officers,
trustees/directors, members, employees and
agents, from and against any claim, loss,
liability, judgment, awards, settlements for
which prior approval of the indemnifying party
is obtained, damages, deficiency, penalty,
cost or expense (including without limitation
reasonable attorneys' fees and
disbursements for external counsel) resulting
from (i) the reckless disregard of the
indemnifying party's obligations and duties h
ereunder; (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
tatement of a material fact whether such claim,
loss, liability, damages, deficiency, penalty,
cost or expense was incurred or suffered
directly or indirectly.
(d) Adviser is liable to, and shall
indemnify, the Fund and the Trust for any acts and
omissions of the Subadviser to the same
extent the Adviser, under the terms of the
Advisory Agreement, is liable to, and must
indemnify the Fund and the Trust for the
Adviser's acts and omissions.
(e) The indemnification provisions
in Section 10 of the Agreement shall survive the
termination of this Agreement.
11. Assignment and Amendment. This
Agreement may not be assigned by the
Subadviser, and
shall automatically terminate, without
the payment of any penalty, in the event:
(a) of its assignment,
including any change in control of the
Adviser or the Subadviser which is deemed
to be an assignment
under the 1940 Act, or (b) that the
Advisory Agreement is assigned or terminates
for any reason. Trades
that were placed prior to such termination
will not be canceled; however, no new trades will be placed
after notice of such termination is received.
Termination of this Agreement shall not relieve the Adviser
or the Subadviser of any liability incurred
hereunder.
The terms of this Agreement shall
not be changed unless such change is
agreed to in writing by
the parties hereto and is approved by the
affirmative vote of a majority of the
Trustees of the Trust voting
in person, including a majority of the
Trustees who are not interested persons of the Trust, the Adviser or
the Subadviser, at a meeting called for
the purpose of voting on such change,
and (to the extent required
by the 0000 Xxx) unless also approved at
a meeting by the affirmative vote of the majority of outstanding
voting securities of the Fund.
12. Duration and Termination. This
Agreement shall become effective as of
the date first above
written and shall remain in full force
and effect for a period of two years
from such date, and thereafter
for successive periods of one year
(provided such continuance is approved
at least annually in conformity
with the requirements of Section 15 of
the 0000 Xxx) unless the Agreement is
terminated automatically as
set forth in Section 11 hereof or until
terminated as follows:
(a) The Trust or the Adviser may at
any time terminate this Agreement, without payment of
any penalty, by not more than 60 days'
prior written notice delivered or mailed by
registered mail, postage prepaid, or by
nationally recognized overnight delivery service,
receipt requested, to the Subadviser.
Action of the Trust under this subsection may be
taken either by (i) vote of its Trustees,
or (ii) the affirmative vote of the outstanding
voting securities of the Fund; or
(b) The Subadviser may at any time
terminate this Agreement by not less than one hundred
twenty (120) days' prior written notice
by facsimile or delivered via registered mail,
postage prepaid or a nationally recognized
overnight delivery service, receipt requested,
to the Adviser.
Termination of this Agreement
pursuant to this Section shall be
without payment of any penalty.
Fees payable to Subadviser for
services rendered under this Agreement
will be prorated to the
date of termination of the Agreement.
In the event of termination of
this Agreement for any reason, the
Subadviser shall, immediately
upon receiving notice of termination or
a receipt acknowledging delivery of a notice of termination to
Adviser, or such later date as may be
specified in such notice, cease all
activity on behalf of the Fund and
with respect to the 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, with respect to the Assets. In
addition, the Subadviser shall deliver
copies of the Fund Assets' 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 approve
d by the vote of a majority of the Trustees, who are not
interested persons of the Trust, the Adviser or the
Subadviser, at a meeting called for the purpose of
voting on such approval.
14. Miscellaneous.
(a) The captions in this Agreement are included
for convenience of reference only and in no
way define or limit any of the provisions hereof or
otherwise affect their construction or
effect. This Agreement may be executed simultaneously
in two or more counterparts,
each of which shall be deemed an original, but all of
which together shall constitute one
and the same instrument. The obligations of the Trust
and the Fund are not personally
binding upon, nor shall resort be had to be private
property of, any of the Trustees,
shareholders, officers, employees or agents of the
Trust or the Fund, but only the Fund's
property shall be bound. The Trust or the Fund shall
not be liable for the obligations of
any other series of the Trust.
(b) Any information supplied by the Trust or the
Adviser to the Subadviser in connection
with the performance of the Subadviser's duties
hereunder, or learned by the Subadviser
as a result of its position as Subadviser to the
Fund, which information is not otherwise in
the public domain, is to be regarded as confidential
information for use by the Subadviser
only in connection with the performance of its duties
hereunder. Any such information in
the hands of the Subadviser may be disclosed as
necessary to comply with any law, rule,
regulation or order of a court or government authority.
(c) Any information supplied by the Subadviser
to the Trust or the Adviser in connection
with the performance of the Subadviser's duties
under this Agreement or learned by the
Trust or the Adviser as a result of the services
provided by the Subadviser under this
Agreement, which information is not otherwise in
the public domain, is to be regarded as
confidential information for use by the Adviser,
the Fund and/or its agents only in
connection with the Fund and its investments.
Any such information in the hands of
either party may be disclosed as necessary to
comply with any law, rule, regulation or
order of a court or government authority.
(d) The Subadviser agrees to submit any
proposed sales literature (including advertisements,
whether in paper, electronic or Internet medium)
for the Trust, the Fund, the Subadviser
or for any of its affiliates which mentions
the Trust, the Fund or Adviser (other than the
use of the Fund's name in a list of clients
of the Subadviser), to the Adviser and to the
Fund's distributor for review and filing with
the appropriate regulatory authority prior to
public release of any such sales literature;
provided, however, that nothing herein shall be
construed so as to create any obligation or
duty on the part of the Subadviser to produce
sales literature for the Trust or the Fund.
(e) The Trust and the Adviser agree to
submit any proposed sales literature that mentions the
Subadviser (other than identifying the
Subadviser as subadviser to the Fund) to the
Subadviser for review prior to use and
the Subadviser agrees to promptly review such
materials by a reasonable and appropriate
deadline. The Trust agrees to cause the
Adviser and the Trust's distributor to
promptly review all such sales literature for
compliance with relevant requirements,
to promptly advise the Subadviser of any
deficiencies contained in such sales
literature, and to promptly file complying sales
literature with the relevant regulatory
authorities. Neither the Adviser, nor the Trust nor
the Fund nor any affiliate of the
foregoing will use the registered trademarks, service
marks, logos, names or any other
proprietary designations of Subadviser, its subsidiaries
and/or affiliates (collectively, "
Subadviser Marks") in any advertising or promotional
materials without Subadviser's prior
written approval, which will not be unreasonably
withheld. Adviser and Subadviser
will work together to develop mutually agreeable
standards and procedures for the review
of materials bearing Subadviser Marks to
facilitate the efficient creation and
use of such advertising or promotional materials.
(f) All notices, consents, waivers
and other communications under this Agreement must be
in writing and, other than notices governed
by Section 12 above, will be deemed to have
been duly given when (i) delivered by hand
(with written confirmation of receipt), (ii)
sent by telecopier, provided that receipt
is confirmed by return telecopy and a copy is sent
by overnight mail via a nationally
recognized overnight delivery service (receipt
requested); (iii) when received by
the addressee, if sent via a nationally recognized
overnight delivery service (receipt
requested) or U.S. mail (postage prepaid),
in each case
to the appropriate address and telecopier
number set forth below (or to such other address
and telecopier number as a party may
designate by notice to the other parties):
Subadviser: LSV Asset Management
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx
Xxxxxxxx
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 ou
tstanding
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 Subadv
xxxx 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/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
MTB INVESTMENT ADVISORS, INC.
By: /s. Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
LSV ASSET MANAGEMENT
By: /s/ Xxxxxxxx Xxxxxxxx
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Operating Officer
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 th
e 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
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