EX-99.23(d)(2)
ESCROW AGREEMENT
This ESCROW AGREEMENT (the "Agreement"), is effective as of
___________, 2008, by and among the BHR Institutional Funds (the "Trust"), with
respect to the Trust's ______________ (the "Fund"); BHR Fund Advisors, L.P. (the
"Adviser"); ______________, (the "Sub-Adviser") and PFPC Trust Company ("Escrow
Agent").
BACKGROUND
Pursuant to an Interim Investment Management Agreement by and between
the Trust and the Adviser (the "Interim Investment Management Agreement") and an
Interim Sub-Advisory Agreement by and between the Adviser and the Sub-Adviser
(the "Interim Sub-Advisory Agreement"), each dated as of ____________, 2008, the
Adviser and Sub-Adviser have each agreed to provide certain investment advisory
services to the Trust with respect to the Fund. Pursuant to Section 4 of the
Interim Investment Management Agreement and Section 4 of the Interim
Sub-Advisory Agreement, the compensation payable to the Adviser by the Trust and
to the Sub-Adviser by the Adviser is required to be deposited into escrow. The
Trust, the Adviser, the Sub-Adviser and Escrow Agent now wish to enter into this
Agreement providing for the appointment by the Trust, the Adviser and the
Sub-Adviser of Escrow Agent to hold such escrowed funds and to set forth the
terms and conditions under which such funds held in escrow shall be disbursed.
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound, the parties hereto agree as
follows:
1. APPOINTMENT OF ESCROW AGENT. The Trust, the Adviser and the
Sub-Adviser each hereby appoint Escrow Agent as the escrow agent under this
Agreement and Escrow Agent hereby accepts such appointment and agrees to hold
all of the funds deposited into escrow with it and investments purchased with
such funds, together with all interest and income thereon and other proceeds
thereof, including proceeds of the sale or maturity of investments constituting
any of the assets held by Escrow Agent hereunder (collectively, the "Escrow
Money"), and to perform its other duties hereunder in accordance with the terms
hereof.
2. ESTABLISHMENT OF ESCROW. The Trust shall deposit with Escrow Agent
as Escrow Money the monthly advisory fees payable to the Adviser by the Trust
for services provided and expenses assumed pursuant to the Interim Investment
Management Agreement. The Trust shall deposit such advisory fees with the Escrow
Agent by wire transfer. Escrow Agent shall have no obligation to require any
Escrow Money to be deposited with it. Escrow Agent shall hold the Escrow Money
in a segregated account on behalf of the Fund as agent pursuant to this
Agreement, and shall disburse the Escrow Money pursuant to the terms of this
Agreement.
3. INVESTMENT OF ESCROW MONEY. Until all of the Escrow Money shall
have been disbursed as provided in this Agreement, the same shall be invested in
a money market mutual fund or interest bearing time deposits as from time to
time the Trust directs in writing. The Escrow Agent and/or its affiliates may
receive fees from such investment, provided such fees are disclosed to the
Trust, the Adviser and the Sub-Adviser. All income earned on and other proceeds
of the Escrow Money shall be added to the amount thereof and distributed in
accordance with the terms hereof. Such income shall be treated as income of the
Adviser and/or Sub-Adviser for income tax purposes; Escrow Agent shall have no
filing, reporting or other obligations with respect thereto. If so directed in
writing by the Trust, Escrow Agent shall settle the sale of such specific
investments comprising all or a portion of the Escrow Money as the Trust shall
direct in writing. Escrow Agent shall promptly provide the Trust, the Adviser
and the Sub-Adviser with a monthly statement of the assets comprising the Escrow
Money at the end of such month and of all debits and credits relating to the
Escrow Money during such month.
4. DISPOSITION OF ESCROW MONEY. Escrow Agent shall disburse the Escrow
Money only pursuant to the mutual written directions of the Trust, the Adviser
and the Sub-Adviser.
5. RESIGNATION OR REMOVAL OF ESCROW AGENT. Escrow Agent may resign at
any time upon 30 days' prior written notice to the Trust, the Adviser and the
Sub-Adviser, and may be removed by the mutual consent of the Trust, the Adviser
and the Sub-Adviser upon 30 days' prior written notice to Escrow Agent. Prior to
the effective date of the resignation or removal of Escrow Agent or any
successor escrow agent, the Trust shall appoint a successor escrow agent to hold
the Escrow Money, and any such successor escrow agent shall execute and deliver
to the predecessor escrow agent an instrument accepting such appointment, upon
which delivery such successor agent shall, without further act, become vested
with all of the rights, powers and duties of the predecessor escrow agent as if
originally named herein.
6. LIABILITY OF ESCROW AGENT.
(a) The duties of Escrow Agent hereunder are only as specifically
set forth herein and are entirely administrative and not discretionary. Escrow
Agent is obligated to act only in accordance with written instructions received
by it as provided in this Agreement, is authorized hereby to comply with any
orders, judgments or decrees of any court or arbitration panel and shall not
incur any liability as a result of its compliance with such instructions,
orders, judgments or decrees. Escrow Agent may assume the due execution,
validity and effectiveness of, and the truth and accuracy of any information
contained in, any instruction or any instrument or other document presented to
it which Escrow Agent shall in good faith believe to be genuine, and to have
been signed or presented by the persons or parties purporting to sign or present
the same.
(b) Escrow Agent shall have no liability under, or duty to
inquire into, the terms or provisions of any other agreement or arrangement
between or requirement applicable to any of the other parties hereto. In the
event that any of the terms or provisions of any other agreement, arrangement or
requirement conflict or are
inconsistent with any of the terms and provisions of this Agreement, the terms
and provisions of this Agreement in respect of Escrow Agent's rights and duties
shall govern and control in all respects.
(c) If Escrow Agent shall be uncertain as to its duties or rights
hereunder, it shall be entitled to refrain from taking any action other than to
keep safely all property held in escrow pursuant hereto until it shall be
directed otherwise in a writing signed by the Trust, the Adviser and the
Sub-Adviser, or by an order of a court of competent jurisdiction. Escrow Agent
may consult with counsel of its choice, including in-house counsel, and shall
not be liable for any action taken, suffered, or omitted by it in accordance
with the written advice of such counsel. Escrow Agent (i) shall not be required
to institute legal proceedings of any kind and (ii) shall not be required to
defend any legal proceedings which may be instituted in respect of the subject
matter of this Agreement unless requested to do so by another party hereto and
indemnified to its reasonable satisfaction against the costs and expenses of
such defense.
(d) The Trust, the Adviser and the Sub-Adviser hereby waive any
suit, claim, demand or cause of action of any kind which either one or all may
have to assert against Escrow Agent arising out of or relating to the execution
or performance by Escrow Agent of this Agreement, unless such suit, claim,
demand or cause of action is the result of the willful misconduct, gross
negligence or bad faith of Escrow Agent in performing an express obligation
hereunder. In no event shall Escrow Agent have any responsibility with respect
to any investment losses relating to the Escrow Money. Escrow Agent shall be
indemnified and held harmless against any and all liabilities, including
judgments, costs and reasonable counsel fees, for anything done or omitted by
Escrow Agent in the performance of this Agreement except as a result of the
willful misconduct, gross negligence or bad faith of Escrow Agent in performing
an express obligation hereunder. All such reimbursements and indemnifications
shall be paid by the Adviser. Escrow Agent's right to such reimbursements and
indemnifications shall survive its resignation or removal and/or termination of
this Agreement.
(e) Notwithstanding anything in this Agreement to the contrary,
the Escrow Agent shall not have any liability for any indirect, special or
consequential damages, regardless of whether the Escrow Agent was aware of the
possibility thereof. Notwithstanding anything in this Agreement to the contrary,
Escrow Agent shall not have any liability for any failure, delays or damages
occurring by reason of circumstances beyond its reasonable control.
7. OUT-OF-POCKET EXPENSES AND FEES OF ESCROW AGENT. Escrow Agent's
out-of-pocket expenses incurred at the direction of the Trust or the Adviser and
Escrow Agent's fees shall be paid by the Adviser and shall be paid promptly upon
receipt of an invoice from Escrow Agent. Escrow Agent's fees shall be as set
forth on Schedule A hereto.
8. NOTICES. All notices or other communications permitted or required
under this Agreement shall be in writing and shall be sufficiently given if and
when hand delivered to the persons set forth below or if sent by documented
overnight delivery service or registered or certified mail, postage prepaid,
return receipt requested, or by telecopy, receipt acknowledged, addressed as set
forth below or to such other
person or persons and/or at such other address or addresses as shall be
furnished in writing by any party hereto to the others. Any such notice or
communication shall be deemed to have been given as of the date received, in the
case of personal delivery, or on the date shown on the receipt or confirmation
therefor in all other cases.
TO TRUST:
BHR Institutional Funds
0000 Xxxx Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxx Xxxxxx
With copies to:
Xxxxxxx X. Xxxxxx, Esq.
Drinker Xxxxxx & Xxxxx, LLP
One Xxxxx Square
00xx & Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
TO THE ADVISER:
BHR Fund Advisors, L.P.
0000 Xxxx Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx
TO THE SUB-ADVISER:
_______________________
_______________________
_______________________
_______________________
Attn: _________________
TO ESCROW AGENT:
PFPC Trust Company
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Fax: (000) 000-0000
9. ENTIRE AGREEMENT AND MODIFICATION. This Agreement constitutes the
entire agreement among the parties hereto with respect to the matters
contemplated herein and supersedes all prior agreements and understandings with
respect thereto. Any amendment, modification or waiver of this Agreement shall
not be effective unless agreed among the parties hereto in writing. Neither the
failure nor any delay on the part of any party to exercise any right, remedy,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same nor shall the exercise of any right,
remedy, power or privilege with respect to any occurrence be construed as a
waiver of any right, remedy, power or privilege with respect to any other
occurrence. This Agreement shall automatically terminate upon disbursement of
all the Escrow Money maintained hereunder.
10. GOVERNING LAW. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the internal laws of the State of
Delaware, without giving effect to otherwise applicable principles of conflicts
of law.
11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which,
when taken together, shall be deemed to constitute but one and the same
Agreement.
12. BINDING EFFECT. Except as contemplated by Section 5 hereof, no
party may assign its rights or delegate its obligations under this Agreement
without the prior written consent of the other parties hereto (provided that
Escrow Agent may utilize a sub-custodian in connection with its services under
this Agreement and provided further that Escrow Agent shall be responsible for
the acts and omissions of such sub-custodian to the same extent that Escrow
Agent is responsible for its own acts and omissions under this Agreement).
Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors,
assigns, heirs, executors and administrators. If any provision of this Agreement
shall be or become illegal or unenforceable in whole or in part for any reason
whatsoever, the remaining provisions shall nevertheless be deemed valid, binding
and subsisting.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
and year first-above written.
BHR INSTITUTIONAL FUNDS
By:
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Name:
Title:
BHR FUND ADVISORS, L.P.
By:
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Name:
Title:
[SUB-ADVISER]
By:
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Name:
Title:
PFPC TRUST COMPANY
By:
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Name:
Title:
SCHEDULE A
Fees of Escrow Agent
$100 per month; first two monthly payments are waived
Out of pocket expenses incurred at the direction of the Trust or the Adviser
