ITEM 77Q(e)(vi) - 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 Del
aware statutory trust (the "Trust"), MTB Investment Advisors,
Inc., a Maryland corporation (the
"Adviser"), and SSgA Funds Management, 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-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
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 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 (which may include affiliates of
the Subadviser) 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, (iii) comply
with any written policies and procedures of
the Trust, as approved by the Board of Trustees
from time to time, and (iv) comply with
applicable law.
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.
Subadviser shall not be liable to the Adviser
nor the Trust nor the Fund for any act,
conduct or omission of any broker selected by
Subadviser to provide transaction or other
services to the Fund, and/or any Fund Series,
provided such broker was selected with
reasonable care and in accordance with the
provisions of this clause (b).
(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
nvestment 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
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 s
hall 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 0.40% of the
first $50 million of the average daily net value of the Assets,
0.32% on the next $90 million of such Assets
, and 0.30% on such Assets in excess of $140 million. Such
fee shall accrue daily and be paid monthly.
The "average daily 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
portfolio similar to the Fund. It is s
pecifically 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 (other
than on behalf of any customer or client for whom Subadviser
acts as trustee, custodian or subcustodian)
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 a
ccount 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 re
spect 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 A
dviser'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 indemnif
ying 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 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 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. 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 numbe
r set forth below (or to such other address
and telecopier number as a party may designate
by notice to the other parties):
Subadviser: SSgA Funds Management, Inc.
State Street Financial Center
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Chief
Compliance Officer
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: (
410) 986-5660
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 exemption
s 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 f
act
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 s
ervicing 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.
(n) The Adviser represents and warrants that
(i) it has full corporate power and authority to
enter into this Agreement (including the power
and authority to appoint the Subadviser
hereunder), and (ii) the Fund is either (y)
excluded from the definition of the term "pool"
under Section 4.5 of the General Regulations
under the Commodity Exchange Act ("Rule
4.5") or (z) a qualifying entity under Rule 4.5(b)
for which a notice of eligibility has been
filed.
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/ Xxxxxxx X. Xxxxx, Xx.
Name: Xxxxxxx X. Xxxxx, Xx.
Title: CEO/Principal Executive Officer
MTB INVESTMENT ADVISORS, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President and CIO
SSgA FUNDS MANAGEMENT, INC.
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: President
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
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