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EXHIBIT (d)(7)
ADVISORY AGREEMENT
This Advisory Agreement (together with each amendment, if any, thereto,
this "AGREEMENT") is made as of February XX, 2000 between __________ (the
"TRUST"), a Massachusetts business trust, and National City Investment
Management Company ("ADVISER"), a Michigan corporation registered as an
investment adviser under the Investment Advisers Act of 1940.
WHEREAS, the Trust desires to retain the Adviser as investment adviser
to the UA S&P 500 Index Fund, a portfolio of the Trust (such portfolio, the
"FUND");
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed among the parties hereto as follows:
1. DELIVERY OF DOCUMENTS. The Trust represents and warrants to the
Adviser that the Trust has furnished the Adviser with true and complete copies
of each of the following, and that all of the following are in full force and
effect, and that none of the following have been superseded or revoked:
(a) The Trust's Declaration of Trust, as filed with the
State Secretary of the Commonwealth of Massachusetts
on __________________, 19___ and all amendments
thereto (such Declaration of Trust, as presently in
effect and as it shall from time to time be amended,
is herein called the "DECLARATION OF TRUST");
(b) The Trust's Code of Regulations, and amendments
thereto;
(c) Resolutions of the Trust's Board of Trustees
authorizing the appointment of the Adviser and
approving this Agreement;
(d) The Trust's Notification of Registration on Form N-8A
under the 1940 Act as filed with the Securities and
Exchange Commission ("SEC") on __________________,
19___ and all amendments thereto;
(e) The Trust's Registration Statement on Form N-1A under
the Securities Act of 1933, as amended (File No.
33-____) and under the Investment Company Act of
1940, as amended (the "1940 ACT") as filed with the
SEC on __________________, 199___ and all amendments
thereto; and
(f) The Trust's most recent prospectuses and statements
of additional information with respect to the Fund
(such prospectus and statement of additional
information, as presently in effect, and all
amendments and supplements thereto are hereinafter
referred to as the "PROSPECTUS").
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The Trust will furnish the Adviser from time to time with
execution copies of all amendments of or supplements to the foregoing.
2. SERVICES. The Trust hereby appoints the Adviser to act as investment
adviser to the Fund for the period and on the terms set forth in this Agreement.
In order to induce the Adviser to accept such appointment, and in consideration
of Adviser's acceptance thereof the Trust represents and warrants to the Adviser
that (a) the Trust registered as an open-end, management investment company
under the 1940 Act, (b) the Fund is classified as a diversified investment fund
under the 1940 Act, and (c) none of the assets of the Fund are or will
constitute "plan assets" as defined in Department of Labor Regulation
ss.2510.3-101 or any successor thereto.
Intending to be legally bound, the Adviser accepts such
appointment and agrees to furnish the services required herein to the Fund for
the compensation hereinafter provided.
Subject to the supervision of the Trust's Board of Trustees,
the Adviser will provide a continuous investment program for the Fund, including
investment research and management with respect to all securities and
investments and cash equivalents in the Fund. The Adviser will determine from
time to time what securities and other investments will be purchased, retained
or sold by the Fund. The Adviser will provide the services under this Agreement
in accordance with the Fund's investment objective, policies, and restrictions
as stated in the Prospectus and resolutions of the Trust's Board of Trustees.
The Trust agrees to give the Adviser, not less than ninety (90) days prior to
the effective date of any change in the Fund's investment objective, policies,
and restrictions as so stated, written notice setting forth such change.
3. SUBCONTRACTORS. It is understood that the Adviser may from time to
time employ or associate with itself such person or persons as the Adviser may
believe to be particularly fitted to assist in the performance of this
Agreement; provided, however, that the compensation of such person or persons
shall be paid by the Adviser and that the Adviser shall be as fully responsible
to the Trust for the acts and omissions of any subcontractor as it is for its
own acts and omissions. Without limiting the generality of the foregoing, it is
agreed that investment advisory service to the Fund may be provided by a
subcontractor agreeable to the Adviser and approved in accordance with the
provision of the 1940 Act. Any such sub-advisers are hereinafter referred to as
the "SUB-ADVISERS." In the event that any Sub-Adviser appointed hereunder with
respect to the Fund is terminated, the Adviser may provide investment advisory
services pursuant to this Agreement to the Fund without further shareholder
approval. Notwithstanding the employment of any Sub-Adviser with respect to the
Fund, the Adviser shall in all events: (a) establish and monitor general
investment criteria and policies for the Fund; (b) review investments in the
Fund on a periodic basis for compliance with its investment objective, policies
and restrictions as stated in the Prospectus applicable to the Fund; (c) review
periodically any Sub-Adviser's policies with respect to the placement of orders
for the purchase and sale of portfolio securities; and (d) review, monitor,
analyze and report to the Board of Trustees on the performance of any
Sub-Adviser.
4. COVENANTS BY ADVISER. The Adviser agrees with respect to the
services provided to the Fund that the Adviser:
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(a) will comply with all applicable Rules and Regulations
of the SEC and will in addition conduct its
activities under this Agreement in accordance with
other applicable law;
(b) will use the same skill and care in providing such
services as it uses in providing services to similar
fiduciary accounts for which it has investment
responsibilities;
(c) will not make loans to any person to purchase or
carry shares in the Fund, or make interest-bearing
loans to the Trust or the Fund;
(d) will maintain a policy and practice of conducting its
investment management activities independently of the
respective commercial departments of all of the
Adviser's banking affiliates. In making investment
recommendations for the Fund, the Adviser's personnel
will not inquire or take into consideration whether
the issuers of securities proposed for purchase or
sale for the Fund's respective accounts are customers
of the respective commercial departments of the
Adviser's banking affiliates;
(e) will place orders pursuant to its investment
determinations for the Fund either directly with the
issuer or with any broker or dealer. In selecting
brokers or dealers for executing portfolio
transactions, the Adviser will use reasonable efforts
to seek on behalf of the Trust and the Fund the best
overall terms available. In assessing the best
overall terms available for any transaction the
Adviser shall consider 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. In evaluating the best overall terms
available, and in selecting the broker or dealer to
execute a particular transaction, the Adviser may
also consider the brokerage and research services (as
those terms are defined in Section 28(e) of the
Securities Exchange Act of 1934, as amended) provided
to the Fund and/or other accounts over which the
Adviser or any affiliate of the Adviser exercises
investment discretion. Subject to the review of the
Trust's Board of Trustees from time to time with
respect to the extent and continuation of such
authority, the Adviser is authorized to negotiate and
pay to a broker or dealer who provides such brokerage
and research services a commission for executing a
portfolio transaction for the Fund which is in excess
of the amount of commission another broker or dealer
would have charged for effecting that transaction if,
but only 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
that particular transaction or in terms of the
overall responsibilities of the Adviser with respect
to the accounts as to which it exercises investment
discretion. In no
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instance will the securities of the Fund be purchased
from or sold to the Adviser, any Sub-Adviser,
______________ (the "DISTRIBUTOR") (or any other
principal underwriter to the Trust) or an affiliated
person of either the Trust, the Adviser, Sub-Adviser,
or the Distributor (or such other principal
underwriter) unless permitted by an order of the SEC
or applicable rules. In executing portfolio
transactions for the Fund, the Adviser may, but shall
not be obligated to, to the extent permitted by
applicable laws and regulations, aggregate the
securities to be sold or purchased with those of its
other clients where such aggregation is not
inconsistent with the policies set forth in the
Trust's registration statement. In such event, the
Adviser will allocate the securities so purchased or
sold, and the expenses incurred in the transaction,
in the manner it considers to be the most equitable
and consistent with its fiduciary obligations to the
Fund and such other clients;
(f) will maintain all books and records with respect to
the securities transactions for the Fund and furnish
the Trust's Board of Trustees such periodic and
special reports as the Board may reasonably request;
and
(g) will treat confidentially and as proprietary
information of the Trust all records and other
information relative to the Fund and prior, present
or potential shareholders, and will not use such
records and information for any purpose other than
performance of its responsibilities and duties
hereunder, except that subject to prompt notification
to the Trust, the Adviser shall have the right to
divulge such information by duly constituted
authorities when requested by such authorities or
when so requested by the Trust; provided, however,
that nothing contained herein shall prohibit the
Adviser from advertising or soliciting the public
generally with respect to the Adviser's services
regardless of whether or not any such advertisement
or solicitation may be directed at prior, present, or
potential shareholders of the Fund.
5. SERVICES NOT EXCLUSIVE. The services furnished by the Adviser
hereunder are deemed not to be exclusive, and the Adviser shall be free to
furnish similar services to others so long as its services under this Agreement
are not impaired thereby. It is understood that the advice given or the action
taken by the Adviser under this Agreement may differ from the advice given or
the timing or nature of action taken with respect to other clients of the
Adviser, and that a transaction in a specific security might not be accomplished
for all clients of the Adviser at the same time or at the same price.
6. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Adviser hereby agrees that all records which it
maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's request.
The Adviser further agrees to preserve for the periods bed by Rule 31a-2 under
the 1940 Act the records required to be maintained by Rule 31a-1 under the 1940
Act.
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7. 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, if
any) purchased for the Fund.
8. COMPENSATION. For the services provided and the expenses assumed
pursuant to this Agreement, the Trust will pay the Adviser from the assets
belonging to the Fund and the Adviser will accept as full compensation therefor
fees, computed daily and paid monthly, at the annual rate of one/one-hundredth
of one percent (.01%) of the average daily net assets of the Fund.
9. LIMITATION OF LIABILITY. The Adviser shall not be liable for any
error of judgment or mistake of law or for any loss suffered by the Trust and
the Fund or either of them in connection with the performance of this Agreement,
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
misfeasance, 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.
10. DURATION AND TERMINATION. This Agreement will become effective with
respect to the Fund upon approval of this Agreement by vote of a majority of the
outstanding voting securities of the Fund, and, unless sooner terminated as
provided herein, shall continue in effect until __________________, 20___.
Thereafter, if not terminated, this Agreement shall continue in effect for
successive twelve month periods ending on _____________________, provided such
continuance is specifically approved at least annually (a) by the vote of a
majority of those members of the Trust's Board of Trustees who are not
interested persons of any party to this Agreement, cast in person at a meeting
called for the purpose of voting on such approval, and (b) by either (i) the
Trust's Board of Trustees or (ii) by the vote of a majority of the outstanding
voting securities of the Fund. Notwithstanding the foregoing, this Agreement may
be terminated at any time, without the payment of any penalty, by the Trust (by
the Trust's Board of Trustees or by vote of a majority of the outstanding voting
securities of the Fund) by the giving of (60) days' prior written notice to the
Adviser, or by the Adviser by the giving of at least 60 days' prior written
notice to the Trust. This Agreement will immediately terminate in the event of
its assignment. As used in this Agreement, the terms "majority of the
outstanding voting securities," "interested persons" and "assignment" shall have
the same meaning of such terms in the 1940 Act.
11. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, waived, discharged or terminated orally, except by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought. No amendment of this Agreement shall be
effective with respect to the Fund until approved by vote of a majority of the
outstanding voting securities of the Fund. The substitution of any investment
adviser in lieu of any entity acting as the "Adviser" hereunder shall be deemed
not to constitute an amendment of this Agreement if such substitution would not
be an assignment by reason of Rule 2a-6 under the 1940 Act or any successor to
such Rule as such Rule or successor is in effect at the time of the
substitution.
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12. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and shall be
governed by the law (excluding conflict of laws rules) of the State of Ohio.
13. NAMES. The names "__________________ FUNDS" and "Trustees of
__________________ FUNDS" refer respectively to the Trust created and the
Trustees, as trustees but not individually or personally, acting from time to
time under the Declaration of Trust which is hereby referred to and a copy of
which is on file at the office of the State Secretary of the Commonwealth of
Massachusetts and the principal office of the Trust. The obligations of
"__________________ FUNDS" entered into in the name or on behalf thereof by any
of the Trustees, representatives or agents are made not individually, but in
such capacities, and are not binding upon any of the Trustees, shareholders, or
representatives of the Trust personally, but bind only the Trust property, and
all persons dealing with any class of shares of the Trust must look solely to
the Trust property belonging to such class for the enforcement of any claims
against the Trust.
14. NOTICES AND OTHER COMMUNICATIONS. Each notice, demand, or other
communication to a party pursuant to this Agreement shall be in writing and
shall be deemed received by that party upon the earliest to occur of
(a) the date of that party's actual receipt thereof,
regardless of the method of delivery;
(b) the date upon which a copy of that notice, demand, or
other communication, as the case may be, shall have
been transmitted to the telecopier number set forth
opposite that party's signature below (or any other
telecopier number of which that party shall have
given notice to the other parties to this Agreement
after the execution and delivery of this Agreement),
whether or not actually received by that party; or
(c) the fifth (5th) day following the date upon which
that notice, demand, or other communication, as the
case may be, shall have been mailed by certified or
registered mail to that party at the address of that
party set forth opposite that party's signature below
(or any other address of which that party shall have
given notice to the other parties to this Agreement
after the execution and delivery of this Agreement),
whether or not actually received by that party.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
Address:
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By:
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Telecopier: Title:
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Address: National City Investment Management
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. No. 2220 Company
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: By:
Telecopier: (216) 575- -------------------------------
Title:
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