INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 22nd day of November, 1993 by and between The Arbor
Fund, a Massachusetts business trust (the "Trust"), and One Valley Bank, N.A.
(the "Adviser").
WHEREAS, the Trust is an open-end, non-diversified management
investment company registered under the Investment Company Act of 1940, as
amended, (the "Investment Company Act") consisting of several series of shares,
each having its own investment policies; and
WHEREAS, the Trust has retained SEI Financial Management Corporation
(the "Administrator") to provide administration of the Trust's operations,
subject to the control of the Board of Trustees;
WHEREAS, the Trust desires to retain the Adviser to render investment
management services with respect to its OVB Emerging Growth, OVB Capital
Appreciation, OVB West Virginia Tax-Exempt Income, OVB Government Securities and
OVB Prime Obligations Portfolios and such other portfolios as the Trust and the
Adviser may agree upon (the "Portfolios"), and the Adviser is willing to render
such services:
NOW, THEREFORE, in consideration of mutual covenants herein contained,
the parties hereto agree as follows:
1. Duties of the Adviser. The Trust employs the Adviser to manage the
investment and reinvestment of the assets, and to continuously
review, supervise, and administer the investment program of the
Portfolios, to determine in its discretion the securities to be
purchased or sold, to provide the Administrator and the Trust with
records concerning the Adviser's activities which the Trust is
required to maintain and to render regular reports (except for those
special reports that the Board of Trustees may require more
frequently) to the Administrator and to the Trust's Officers and
Trustees concerning the Adviser's discharge of the foregoing
responsibilities.
The Adviser shall discharge the foregoing responsibilities subject
to the control of the Board of Trustees of the Trust and in
compliance with such policies as the Trustees may from time to time
establish, and in compliance with the objectives, policies, and
limitations for each such Portfolio set forth in the Portfolios'
prospectus and statement of additional information as amended from
time to time, and applicable laws and regulations.
The Adviser accepts such employment and agrees, at its own expense,
to render the services and to provide the office space, furnishings
and equipment and the personnel required by it to perform the
services on the terms and for the compensation provided herein.
2. Portfolio Transactions. The Adviser is authorized to select the
brokers or dealers that will execute the purchases and sales of
portfolio securities for the Portfolios and is directed to use its
best efforts to obtain the best net results as described in the
Portfolios' prospectuses and statement of additional information
from time to time. The Adviser will promptly communicate to the
Administrator and to the officers and the Trustees of the Trust such
information relating to portfolio transactions as they may
reasonably request.
It is understood that the Adviser will not be deemed to have acted
unlawfully, or to have breached a fiduciary duty to the Trust or be
in breach of any obligation owing to the Trust under this Agreement,
or otherwise, solely by reason of its having directed a securities
transaction on behalf of the Trust to a broker-dealer in compliance
with the provisions of Section 28(e) of the Securities Exchange Act
of 1934.
3. Compensation of the Adviser. For the services to be rendered by the
Adviser as provided in Sections 1 and 2 of this Agreement, the Trust
shall pay to the Adviser compensation at the rate specified in the
Schedule(s) which are attached hereto and made a part of this
Agreement. Such compensation shall be paid to the Adviser at the end
of each month, and calculated by applying a daily rate, based on the
annual percentage rates as specified in the attached Schedule(s), to
the assets. The fee shall be based on the average daily net assets
for the month involved.
All rights of compensation under this Agreement for services
performed as of the termination date shall survive the termination
of this Agreement.
4. Other Expenses. The Adviser shall pay all expenses of preparing
(including typesetting), printing and mailing reports, prospectuses,
statements of additional information, and sales literature to
prospective clients to the extent these expenses are not borne by
the Trust under a distribution plan adopted pursuant to Rule 12b-1
of the Investment Company Act.
5. Excess Expenses. If the expenses for any Portfolio for any fiscal
year (including fees and other amounts payable to the Adviser, but
excluding interest, taxes, brokerage costs, litigation, and other
extraordinary costs) as calculated every business day would exceed
the expense limitations imposed on investment companies by any
applicable statute or regulatory authority of any jurisdiction in
which Shares are qualified for offer and sale, the Adviser shall
waive its fees, or reimburse to the Trust out of fees previously
paid to the Adviser for such year in the amount necessary to comply
with the expense limitation.
However, no waiver or reimbursement under the foregoing paragraph
shall be made which would result in the Trust's inability to qualify
as a regulated investment company under provisions of the Internal
Revenue Code of 1986, as amended. Waivers or reimbursements pursuant
to this Section 5 shall be settled on a monthly basis (subject to
fiscal year end reconciliation) by a reduction in the fee payable to
the Adviser for such month pursuant to Section 3 and, if such
reduction shall be insufficient to offset such expenses, by
reimbursing the Trust.
6. Reports. The Trust and the Adviser agree to furnish to each other,
if applicable, current prospectuses, proxy statements, reports to
shareholders, certified copies of their financial statements, and
such other information with regard to their affairs as each may
reasonably request.
7. Status of the Adviser. The services of the Adviser to the Trust are
not to be deemed exclusive, and the Adviser shall be free to render
similar services to others so long as its services to the Trust are
not impaired thereby. The Adviser shall be deemed to be an
independent contractor and shall, unless otherwise expressly
provided or authorized, have no authority to act for or represent
the Trust in any way or otherwise be deemed an agent of the Trust.
8. Certain Records. Any records required to be maintained and preserved
pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated
under the Investment Company Act which are prepared or maintained by
the Adviser on behalf of the Trust are the property of the Trust and
will be surrendered promptly to the Trust on request.
9. Limitation of Liability of the Adviser. The duties of the Adviser
shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against the Adviser
hereunder. The Adviser shall not be liable for any error of judgment
or mistake of law or for any loss arising out of any investment or
for any act or omission in carrying out its duties hereunder, except
a loss resulting from willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of
reckless disregard of its obligations and duties hereunder, except
as may otherwise be provided under provisions of applicable state
and federal law which cannot be waived or modified hereby. (As used
in this Paragraph 9, the term "Adviser" shall include directors,
officers, employees and other corporate agents of the Adviser as
well as that corporation itself).
10. Permissible Interests. Trustees, agents, and shareholders of the
Trust are or may be interested in the Adviser (or any successor
thereof) as directors, partners, officers, or shareholders, or
otherwise; directors, partners, officers, agents, and shareholders
of the Adviser are or may be interested in the Trust as Trustees,
shareholders or otherwise; and the Adviser (or any successor) is or
may be interested in the Trust as a shareholder or otherwise. In
addition, brokerage transactions for the Trust may be effected
through affiliates of the Adviser if approved by the Board of
Trustees, subject to the rules and regulations of the Securities and
Exchange Commission.
11. Duration and Termination. This Agreement, unless sooner terminated
as provided herein, shall remain in effect until two years from date
of execution, and thereafter, for periods of one year so long as
such continuance thereafter is specifically approved at least
annually (a) by the vote of a majority of those Trustees of the
Trust who are not parties to this Agreement or interested persons of
any such party, cast in person at a meeting called for the purpose
of voting on such approval, and (b) by the Trustees of the Trust or
by vote of a majority of the outstanding voting securities of each
Portfolio; provided, however, that if the shareholders of any
Portfolio fail to approve the Agreement as provided herein, the
Adviser may continue to serve hereunder in the manner and to the
extent permitted by the Investment Company Act and rules and
regulations thereunder. The foregoing requirement that continuance
of this Agreement be "specifically approved at least annually" shall
be construed in a manner consistent with the Investment Company Act
and the rules and regulations thereunder.
This Agreement may be terminated as to any Portfolio at any time,
without the payment of any penalty by vote of a majority of the
Trustees of the Trust or by vote of a majority of the outstanding
voting securities of the Portfolio on not less than 30 days nor more
than 60 days written notice to the Adviser, or by the Adviser at any
time without the payment of any penalty, on 90 days written notice
to the Trust. This Agreement will automatically and immediately
terminate in the event of its assignment. Any notice under this
Agreement shall be given in writing, addressed and delivered, or
mailed postpaid, to the other party at any office of such party.
As used in this Section 11, the terms "assignment", "interested
persons", and a "vote of a majority of the outstanding voting
securities" shall have the respective meanings set forth in the
Investment Company Act and the rules and regulations thereunder;
subject to such exemptions as may be granted by the Securities and
Exchange Commission under said Act.
12. Notice. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient if sent by registered
or certified mail, postage prepaid, addressed by the party giving
notice to the other party at the last address furnished by the other
party to the party giving notice: if to the Trust, at 000 Xxxx
Xxxxxxxxxx Xxxx, Xxxxx, XX 00000 and if to the Adviser at: Xxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
13. Severability. 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.
A copy of the Agreement and Declaration of Trust of the Trust is on
file with the Secretary of The Commonwealth of Massachusetts, and notice is
hereby given that this instrument is executed on behalf of the Trustees of the
Trust as Trustees, and are not binding upon any of the Trustees, officers, or
shareholders of the Trust individually but binding only upon the assets and
property of the Trust.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the day and year first written above.
THE ARBOR FUND ONE VALLEY BANK, N.A.
By: By:
------------------------------ -------------------------------
Attest: Attest:
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Schedule A
to the
Investment Advisory Agreement
between
The Arbor Fund
and
One Valley Bank, N.A.
Pursuant to Article 3, the Trust shall pay the Adviser compensation at an annual
rate as follows:
Portfolio Fee (in basis points)
--------- ---------------------
OVB Emerging Growth .95%
OVB Capital Appreciation .95%
OVB West Virginia Tax Exempt Income .45%
OVB Government Securities .75%
OVB Prime Obligations .25%
Schedule dated August 1, 1996
to the
Investment Advisory Agreement
dated November 22, 1993
between
The Arbor Fund
and
One Valley Bank, N.A.
Pursuant to Article 3, the Trust shall pay the Adviser compensation at an annual
rate as follows:
Portfolio Fee
--------- ---
OVB Equity Income .74%
