EX-99.23(d)(10)
INTERIM INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT, dated as of _____________, 2008 by and between BHR Fund
Advisors, L.P., a Delaware limited partnership (the "Adviser"), and Mount Xxxxx
Management Corporation, a Delaware Corporation (the "Sub-Adviser").
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS, the Adviser has entered into an interim investment management
agreement (the "Investment Management Agreement") dated ____________, 2008 with
the BHR Institutional Funds (the "Trust") an investment company registered under
the Investment Company Act of 1940, as amended ("Investment Company Act");
WHEREAS, the Sub-Adviser is registered as an investment adviser under the
Advisers Act;
WHEREAS, the Board of Trustees of the Trust and the Adviser desire to
retain the Sub-Adviser to render investment advisory and other services to the
portfolio(s) specified in Appendix A hereto, each a series of the Trust (each a
"Portfolio" and collectively, the "Portfolios"), in the manner and on the terms
hereinafter set forth;
WHEREAS, the Adviser has the authority under the Investment Management
Agreement with the Trust to select advisers for each Portfolio of the Trust; and
WHEREAS, the Sub-Adviser is willing to furnish such services to the Adviser
and each Portfolio;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein, and intending to be legally bound hereby, the Adviser and the
Sub-Adviser agree as follows:
1. APPOINTMENT OF THE SUB-ADVISER
The Adviser hereby appoints the Sub-Adviser to act as an investment adviser
for each Portfolio, subject to the supervision and oversight of the Adviser and
the Trustees of the Trust, and in accordance with the terms and conditions of
this Agreement. The Sub-Adviser will be an independent contractor and will have
no authority to act for or represent the Trust or the Adviser in any way or
otherwise be deemed an agent of the Trust or the Adviser except as expressly
authorized in this Agreement or another writing by the Trust, the Adviser and
the Sub-Adviser.
2. ACCEPTANCE OF APPOINTMENT
The Sub-Adviser accepts that appointment and agrees to render the services
herein set forth, for the compensation herein provided.
The assets of each Portfolio will be maintained in the custody of a
custodian (who shall be identified by the Adviser in writing). The Sub-Adviser
will not have custody of any securities, cash or other assets of the Portfolio
and will not be liable for any loss resulting from any act or omission of the
custodian other than acts or omissions arising in reliance on instructions of
the Sub-Adviser.
3. SERVICES TO BE RENDERED BY THE SUB-ADVISER TO THE TRUST
A. As investment adviser to each Portfolio, the Sub-Adviser will coordinate
the investment and reinvestment of the assets of the Portfolio and determine the
composition of the assets of the Portfolio, subject always to the supervision
and control of the Adviser and the Trustees of the Trust.
B. As part of the services it will provide hereunder, the Sub-Adviser will:
(i) obtain and evaluate, to the extent deemed necessary and advisable
by the Sub-Adviser in its discretion, pertinent economic, statistical,
financial, and other information affecting the economy generally and
individual companies or industries, the securities of which are included in
the Portfolio or are under consideration for inclusion in the Portfolio;
(ii) formulate and implement a continuous investment program for the
Portfolio;
(iii) take whatever steps are necessary to implement the investment
program for the Portfolio by arranging for the purchase and sale of
securities and other investments, including issuing directives to the
administrator of the Trust as necessary for the appropriate implementation
of the investment program of the Portfolio;
(iv) keep the Trustees of the Trust and the Adviser fully informed in
writing on an ongoing basis as agreed by the Adviser and the Sub-Adviser of
all material facts concerning the investment and reinvestment of the assets
in the Portfolio, the Sub-Adviser and its key investment personnel and
operations, make regular and periodic special written reports of such
additional information concerning the same as may reasonably be requested
from time to time by the Adviser or the Trustees of the Trust and the
Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as
reasonably requested, to discuss the foregoing;
(v) in accordance with procedures and methods established by the
Trustees of the Trust, which may be amended from time to time, provide
assistance in determining the fair value of all securities and other
investments/assets in the Portfolio, as necessary, and use reasonable
efforts to arrange for the provision of valuation information or a price(s)
from a party(ies) independent of the Sub-Adviser for each security or other
investment/asset in the Portfolio for which market prices are not readily
available;
(vi) provide any and all material composite performance information,
records and supporting documentation about accounts the Sub-Adviser
manages, if appropriate, which are relevant to the Portfolio and that have
investment objectives, policies, and
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strategies substantially similar to those employed by the Sub-Adviser in
managing the Portfolio that may be reasonably necessary, under applicable
laws, to allow the Portfolio or its agent to present information concerning
Sub-Adviser's prior performance in the Trust's Prospectus and SAI (as
hereinafter defined) and any permissible reports and materials prepared by
the Portfolio or its agent; and
(vii) cooperate with and provide reasonable assistance to the Adviser,
the Trust's administrator, the Trust's custodian and foreign custodians,
the Trust's transfer agent and pricing agents and all other agents and
representatives of the Trust and the Adviser, keep all such persons fully
informed as to such matters as they may reasonably deem necessary to the
performance of their obligations to the Trust and the Adviser, provide
prompt responses to reasonable requests made by such persons and maintain
any appropriate interfaces with each so as to promote the efficient
exchange of information.
C. In furnishing services hereunder, the Sub-Adviser shall be subject to,
and shall perform in accordance with the following: (i) the Trust's Agreement
and Declaration of Trust, as the same may be hereafter modified and/or amended
from time to time ("Trust Declaration"); (ii) the By-Laws of the Trust, as the
same may be hereafter modified and/or amended from time to time ("By-Laws");
(iii) the currently effective Prospectus and Statement of Additional Information
of the Trust relating to the Portfolio(s) filed with the Securities and Exchange
Commission ("SEC") and delivered to the Sub-Adviser, as the same may be
hereafter modified, amended and/or supplemented ("Prospectus and SAI"); (iv) the
Investment Company Act and the Advisers Act and the rules under each, and all
other federal and state laws or regulations applicable to the Trust and the
Portfolio(s); (v) the Trust's Compliance Manual and other policies and
procedures adopted from time to time by the Board of Trustees of the Trust; and
(vi) the written instructions of the Adviser. Prior to the commencement of the
Sub-Adviser's services hereunder, the Adviser shall provide the Sub-Adviser with
current copies of the Trust Declaration, By-Laws, Prospectus and SAI, Compliance
Manual and other relevant policies and procedures that are adopted by the Board
of Trustees. The Adviser undertakes to provide the Sub-Adviser with copies or
other written notice of any amendments, modifications or supplements to any such
above-mentioned document.
D. In furnishing services hereunder, the Sub-Adviser will not consult with
any other adviser to (i) the Portfolio, (ii) any other Portfolio of the Trust or
(iii) any other investment company under common control with the Trust
concerning transactions of the Portfolio in securities or other assets. (This
shall not be deemed to prohibit the Sub-Adviser from consulting with any of its
affiliated persons concerning transactions in securities or other assets. This
shall also not be deemed to prohibit the Sub-Adviser from consulting with any of
the other covered advisers concerning compliance with paragraphs a and b of Rule
12d3-1 under the Investment Company Act.)
E. The Sub-Adviser, at its expense, will furnish: (i) all necessary
facilities (including office space, furnishings, and equipment) and personnel,
including salaries, expenses and fees of any personnel required for them to
faithfully perform their duties under this Agreement; and (ii) administrative
facilities, including bookkeeping, and all equipment necessary for the efficient
conduct of the Sub-Adviser's duties under this Agreement.
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F. The Sub-Adviser will select brokers and dealers to effect all portfolio
transactions subject to the conditions set forth herein. The Sub-Adviser will
place all necessary orders with brokers, dealers, or issuers, and will negotiate
brokerage commissions, if applicable. The Sub-Adviser is directed at all times
to seek to execute transactions for each Portfolio (i) in accordance with any
written policies, practices or procedures that may be established by the Board
of Trustees or the Adviser from time to time and which have been provided to the
Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing
any orders for the purchase or sale of investments for each Portfolio, in the
name of the Portfolio or its nominees, the Sub-Adviser shall use its best
efforts to obtain for the Portfolio "best execution," considering all of the
circumstances, and shall maintain records adequate to demonstrate compliance
with this requirement. In no instance will portfolio securities be purchased
from or sold to the Sub-Adviser, or any affiliated person thereof, except in
accordance with the Investment Company Act, the Advisers Act and the rules under
each, and all other federal and state laws or regulations applicable to the
Trust and the Portfolio.
G. Subject to the appropriate policies and procedures approved by the Board
of Trustees, the Sub-Adviser may, to the extent authorized by Section 28(e) of
the Securities Exchange Act of 1934, as amended ("Exchange Act") cause each
Portfolio to pay a broker or dealer that provides brokerage or research services
to the Adviser, the Sub-Adviser and the Portfolio 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
Sub-Adviser 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 Sub-Adviser's
overall responsibilities to the Portfolio or its other advisory clients. To the
extent authorized by Section 28(e) and the Trust's Board of Trustees, the
Sub-Adviser 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.
Subject to seeking best execution, the Board of Trustees or the Adviser may
direct the Sub-Adviser to effect transactions in portfolio securities through
broker-dealers in a manner that will help generate resources to pay the cost of
certain expenses that the Trust is required to pay or for which the Trust is
required to arrange payment.
H. On occasions when the Sub-Adviser deems the purchase or sale of a
security to be in the best interest of the Portfolio(s) as well as other clients
of the Sub-Adviser, the Sub-Adviser to the extent permitted by applicable laws
and regulations, may, but shall be under no obligation to, aggregate the
securities to be purchased or sold to attempt to obtain a more favorable price
or lower brokerage commissions and efficient execution. Allocation of the
securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser
considers to be the most equitable and consistent with its fiduciary obligations
to each Portfolio and to its other clients over time. The Adviser agrees that
the Sub-Adviser and its affiliates may give advice and take action in the
performance of their duties with respect to any of their other clients that may
differ from advice given, or the timing or nature of actions taken, with respect
to the Portfolio. The Adviser also acknowledges that the Sub-Adviser and its
affiliates are fiduciaries to other entities, some of which have the same or
similar investment objectives (and will hold the same or similar investments) as
the Portfolio, and that the Sub-Adviser will carry out its duties hereunder
together with its duties under such relationships. Nothing in this Agreement
shall be deemed to confer upon the Sub-Adviser any
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obligation to purchase or to sell or to recommend for purchase or sale for the
Portfolio any investment that the Sub-Adviser, its affiliates, officers or
employees may purchase or sell for its or their own account or for the account
of any client, if in the sole and absolute discretion of the Sub-Adviser it is
for any reason impractical or undesirable to take such action or make such
recommendation for the Portfolio.
I. The Sub-Adviser will maintain all accounts, books and records with
respect to each Portfolio as are required of an investment adviser of a
registered investment company pursuant to the Investment Company Act and
Advisers Act and the rules thereunder and shall file with the SEC all forms
pursuant to Section 13 of the Exchange Act, with respect to its duties as are
set forth herein.
J. The Sub-Adviser will, unless and until otherwise directed by the Adviser
or the Board of Trustees, exercise all rights of security holders with respect
to securities held by each Portfolio, including, but not limited to: voting
proxies, converting, tendering, exchanging or redeeming securities; acting as a
claimant in class action litigation (including litigation with respect to
securities previously held); and exercising rights in the context of a
bankruptcy or other reorganization.
4. COMPENSATION OF SUB-ADVISER
The Adviser will pay the Sub-Adviser an advisory fee with respect to each
Portfolio as specified in Appendix B to this Agreement. Payments shall be made
to the Sub-Adviser on or about the fifth day of each month, and calculated by
applying a daily rate, based on the annual percentage rates as specified in the
appropriate Schedule, to the assets. The fee shall be based on the average daily
net assets for the month involved. Except as may otherwise be prohibited by law
or regulation (including, without limitation, any then current SEC staff
interpretation), the Sub-Adviser may, in its discretion and from time to time,
waive all or any portion of its advisory fee.
The fees payable by the Adviser under this Section 4 will be maintained in
an interest-bearing escrow account on behalf of the Portfolio pursuant to an
Escrow Agreement by and among the Trust, the Adviser, the Sub-Adviser and PFPC
Trust Company dated as of the date hereof. If, during the term of this
Agreement, a new investment management agreement with the Adviser and a new
sub-advisory agreement with the Sub-Adviser are approved by a majority of a
Portfolio's outstanding voting securities, then the amount held in the escrow
account on behalf of the Portfolio (plus interest and income earned thereon and
proceeds thereof) shall be paid to the Sub-Adviser. If, however, a new
investment management agreement with the Adviser and a new sub-advisory
agreement with the Sub-Adviser are not approved by a majority of a Portfolio's
outstanding voting securities (as defined in the 1940 Act), then the Sub-Adviser
shall be entitled to the lesser of: (i) any costs incurred in performing this
Agreement (plus interest and income earned thereon and proceeds thereof) or (ii)
the total amount held in the escrow account (plus interest and income earned
thereon and proceeds thereof).
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5. LIABILITY AND INDEMNIFICATION
A. Except as may otherwise be provided by the Investment Company Act or any
other federal securities law, neither the Sub-Adviser nor any of its officers,
members or employees (its "Affiliates") shall be liable for any losses, claims,
damages, liabilities or litigation (including legal and other expenses) incurred
or suffered by the Adviser or the Trust as a result of any error of judgment or
mistake of law by the Sub-Adviser or its Affiliates with respect to each
Portfolio, except that nothing in this Agreement shall operate or purport to
operate in any way to exculpate, waive or limit the liability of the Sub-Adviser
or its Affiliates for, and the Sub-Adviser shall indemnify and hold harmless the
Trust, the Adviser, all affiliated persons thereof (within the meaning of
Section 2(a)(3) of the Investment Company Act) and all controlling persons (as
described in Section 15 of the Securities Act of 1933, as amended ("1933 Act"))
(collectively, "Adviser Indemnitees") against any and all losses, claims,
damages, liabilities or litigation (including reasonable legal and other
expenses) to which any of the Adviser Indemnitees may become subject under the
1933 Act, the Investment Company Act, the Advisers Act, or under any other
statute, or common law or otherwise arising out of or based on (i) any willful
misconduct, bad faith, reckless disregard or gross negligence of the Sub-Adviser
in the performance of any of its duties or obligations hereunder or (ii) any
untrue statement of a material fact contained in the Prospectus and SAI, proxy
materials, reports, advertisements, sales literature, or other materials
pertaining to the Portfolio or the omission to state therein a material fact
known to the Sub-Adviser which was required to be stated therein or necessary to
make the statements therein not misleading, if such statement or omission was
made in reliance upon information furnished to the Adviser or the Trust by the
Sub-Adviser Indemnitees (as defined below) for use therein.
B. Except as may otherwise be provided by the Investment Company Act or any
other federal securities law, the Adviser and the Trust shall not be liable for
any losses, claims, damages, liabilities or litigation (including legal and
other expenses) incurred or suffered by the Sub-Adviser as a result of any error
of judgment or mistake of law by the Adviser with respect to each Portfolio,
except that nothing in this Agreement shall operate or purport to operate in any
way to exculpate, waive or limit the liability of the Adviser for, and the
Adviser shall indemnify and hold harmless the Sub-Adviser, all affiliated
persons thereof (within the meaning of Section 2(a)(3) of the Investment Company
Act) and all controlling persons (as described in Section 15 of the 1933 Act)
(collectively, "Sub-Adviser Indemnitees") against any and all losses, claims,
damages, liabilities or litigation (including reasonable legal and other
expenses) to which any of the Sub-Adviser Indemnitees may become subject under
the 1933 Act, the Investment Company Act, the Advisers Act, or under any other
statute, at common law or otherwise arising out of or based on (i) any willful
misconduct, bad faith, reckless disregard or gross negligence of the Adviser in
the performance of any of its duties or obligations hereunder or (ii) any untrue
statement of a material fact contained in the Prospectus and SAI, proxy
materials, reports, advertisements, sales literature, or other materials
pertaining to the Portfolio(s) or the omission to state therein a material fact
known to the Adviser that was required to be stated therein or necessary to make
the statements therein not misleading, unless such statement or omission was
made in reliance upon information furnished to the Adviser or the Trust.
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6. REPRESENTATIONS OF THE ADVISER
The Adviser represents, warrants and agrees that:
A. The Adviser has been duly authorized by the Board of Trustees of the
Trust to delegate to the Sub-Adviser the provision of investment services to
each Portfolio as contemplated hereby.
B. The Adviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the Investment Company Act and will provide the
Sub-Adviser with a copy of such code of ethics.
C. The Adviser is currently in material compliance and shall at all times
continue to materially comply with the requirements imposed upon the Adviser by
applicable law and regulations.
D. The Adviser (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the Investment Company Act, the
Advisers Act or other law, regulation or order from performing the services
contemplated by this Agreement; (iii) to the best of its knowledge, has met and
will seek to continue to meet for so long as this Agreement is in effect, any
other applicable federal or state requirements, or the applicable requirements
of any regulatory or industry self-regulatory agency necessary to be met in
order to perform the services contemplated by this Agreement; and (v) will
promptly notify the Sub-Adviser of the occurrence of any event that would
disqualify the Adviser from serving as investment manager of an investment
company pursuant to Section 9(a) of the Investment Company Act or otherwise. The
Adviser will also promptly notify the Sub-Adviser if it is served or otherwise
receives notice of any action, suit, proceeding, inquiry or investigation, at
law or in equity, before or by any court, public board or body, involving the
affairs of the Portfolio(s), provided, however, that routine regulatory
examinations shall not be required to be reported by this provision.
E. The execution, delivery and performance of this Agreement do not, and
will not, conflict with, or result in any violation or default under, any
agreement to which Adviser or any of its affiliates are a party.
7. REPRESENTATIONS OF THE SUB-ADVISER
The Sub-Adviser represents, warrants and agrees as follows:
A. The Sub-Adviser is currently in material compliance and shall at all
times continue to materially comply with the requirements imposed upon the
Sub-Adviser by applicable law and regulations.
B. The Sub-Adviser (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the Investment Company Act, the
Advisers Act or other law, regulation or order from performing the services
contemplated by this Agreement; (iii) has met and will seek to continue to meet
for so long as this Agreement remains in effect, any other applicable federal or
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state requirements, or the applicable requirements of any regulatory or industry
self-regulatory agency necessary to be met in order to perform the services
contemplated by this Agreement; (iv) has the authority to enter into and perform
the services contemplated by this Agreement; and (v) will promptly notify the
Adviser of the occurrence of any event that would disqualify the Sub-Adviser
from serving as an investment adviser of an investment company pursuant to
Section 9(a) of the Investment Company Act or otherwise. The Sub-Adviser will
also promptly notify each Portfolio and the Adviser if it is served or otherwise
receives notice of any action, suit, proceeding, inquiry or investigation, at
law or in equity, before or by any court, public board or body, involving the
affairs of the Portfolio(s), provided, however, that routine regulatory
examinations shall not be required to be reported by this provision.
C. The Sub-Adviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the Investment Company Act and Rule 204A-1
under the Advisers Act and will provide the Adviser and the Board with a copy of
such code of ethics, together with evidence of its adoption. Within forty-five
days of the end of the last calendar quarter of each year that this Agreement is
in effect, and as otherwise requested, the president, Chief Compliance Officer
or a vice-president of the Sub-Adviser shall certify to the Adviser that the
Sub-Adviser has complied with the requirements of Rule 17j-1 and Rule 204A-1
during the previous year and that there has been no material violation of the
Sub-Adviser's code of ethics or, if such a material violation has occurred, that
appropriate action was taken in response to such violation. Upon the written
request of the Adviser, the Sub-Adviser shall permit the Adviser, its employees
or its agents to examine the reports required to be made to the Sub-Adviser by
Rule 17j-1(c)(1) and Rule 204A-1(b) and all other records relevant to the
Sub-Adviser's code of ethics.
D. The Sub-Adviser has provided the Trust and the Adviser with a copy of
its Form ADV Part I, which as of the date of this Agreement is its Form ADV as
most recently filed with the SEC and ADV Part II and promptly will furnish a
copy of all amendments to the Trust and the Adviser at least annually. Such
amendments shall reflect all changes in the Sub-Adviser's organizational
structure, professional staff or other significant developments affecting the
Sub-Adviser, as required by the Advisers Act.
E. The Sub-Adviser will notify the Trust and the Adviser of any assignment
of this Agreement or change of control of the Sub-Adviser, as applicable, and
any changes in the key personnel who are either the portfolio manager(s) of the
Portfolio(s) or senior management of the Sub-Adviser, in each case prior to or
promptly after, such change. The Sub-Adviser agrees to bear all reasonable
expenses of the Trust, if any, arising out of an assignment or change in
control.
F. The Sub-Adviser will promptly notify the Adviser of any financial
condition that is likely to impair the Sub-Adviser's ability to fulfill its
commitment under this Agreement.
G. The Sub-Adviser agrees to maintain an appropriate level of errors and
omissions or professional liability insurance coverage.
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H. The execution, delivery and performance of this Agreement do not, and
will not, conflict with, or result in any violation or default under, any
agreement to which Sub-Adviser or any of its affiliates are a party.
8. NON-EXCLUSIVITY
The services of the Sub-Adviser to the Adviser, the Portfolio(s) and the
Trust are not to be deemed to be exclusive, and the Sub-Adviser shall be free to
render investment advisory or other services to others and to engage in other
activities. It is understood and agreed that the directors, officers, and
employees of the Sub-Adviser are not prohibited from engaging in any other
business activity or from rendering services to any other person, or from
serving as partners, officers, directors, trustees, or employees of any other
firm or corporation.
9. SUPPLEMENTAL ARRANGEMENTS
The Sub-Adviser may from time to time employ or associate itself with any
person it believes to be particularly suited to assist it in providing the
services to be performed by such Sub-Adviser hereunder, provided that no such
person shall perform any services with respect to the Portfolio(s) that would
constitute an assignment or require a written advisory agreement pursuant to the
Investment Company Act. Any compensation payable to such persons shall be the
sole responsibility of the Sub-Adviser, and neither the Adviser nor the Trust
shall have any obligations with respect thereto or otherwise arising under the
Agreement.
10. REGULATION
The Sub-Adviser shall submit to all regulatory and administrative bodies
having jurisdiction over the services provided pursuant to this Agreement any
information, reports, or other material which any such body by reason of this
Agreement may request or require pursuant to applicable laws and regulations.
11. RECORDS
The records relating to the services provided under this Agreement shall be
the property of the Trust and shall be under its control; however, the Trust
shall furnish to the Sub-Adviser such records and permit it to retain such
records (either in original or in duplicate form) as it shall reasonably require
in order to carry out its business. In the event of the termination of this
Agreement, such other records shall promptly be returned to the Trust by the
Sub-Adviser free from any claim or retention of rights therein, provided that
the Sub-Adviser may retain any such records that are required by law or
regulation. The Adviser and the Sub-Adviser shall keep confidential any
information obtained in connection with its duties hereunder and disclose such
information only if the Trust has authorized such disclosure or if such
disclosure is expressly required or requested by applicable federal or state
regulatory authorities, or otherwise required by law.
12. DURATION OF AGREEMENT
This Agreement shall become effective on the date hereof. Unless terminated
as herein provided and subject to all of the other terms and conditions hereof,
this Agreement shall remain
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in full force and effect until the first of the following to occur: the
effective date of a new sub-advisory agreement relating to the Sub-Adviser's
management of a Portfolio which has been approved by a majority of the
Portfolio's outstanding voting securities, or the 151st calendar day following
the date hereof.
13. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of any
penalty, by the Board of Trustees, including a majority of the Independent
Trustees, by the vote of a majority of the outstanding voting securities of the
Portfolio, on ten (10) days' written notice to the Adviser and the Sub-Adviser,
or by the Adviser or Sub-Adviser on sixty (60) days' written notice to the Trust
and the other party. This Agreement will automatically terminate, without the
payment of any penalty, (i) in the event of its assignment (as defined in the
Investment Company Act), or (ii) in the event the Investment Management
Agreement between the Adviser and the Trust is assigned (as defined in the
Investment Company Act) or terminates for any other reason. This Agreement will
also terminate upon written notice to the other party that the other party is in
material breach of this Agreement, unless the other party in material breach of
this Agreement cures such breach to the reasonable satisfaction of the party
alleging the breach within thirty (30) days after written notice.
14. USE OF THE SUB-ADVISER'S NAME
The parties agree that the name of the Sub-Adviser, the names of any
affiliates of the Sub-Adviser and any derivative or logo or trademark or service
xxxx or trade name are the valuable property of the Sub-Adviser and its
affiliates. The Adviser and the Trust shall have the right to use such name(s),
derivatives, logos, trademarks or service marks or trade names only with the
prior written approval of the Sub-Adviser, which approval shall not be
unreasonably withheld or delayed so long as this Agreement is in effect.
Upon termination of this Agreement, the Adviser and the Trust shall
forthwith cease to use such name(s), derivatives, logos, trademarks or service
marks or trade names. The Adviser and the Trust agree that they will review with
the Sub-Adviser any advertisement, sales literature, or notice prior to its use
that makes reference to the Sub-Adviser or its affiliates or any such name(s),
derivatives, logos, trademarks, service marks or trade names so that the
Sub-Adviser may review the context in which it is referred to, it being agreed
that the Sub-Adviser shall have no responsibility to ensure the adequacy of the
form or content of such materials for purposes of the Investment Company Act or
other applicable laws and regulations. If the Adviser or the Trust makes any
unauthorized use of the Sub-Adviser's names, derivatives, logos, trademarks or
service marks or trade names, the parties acknowledge that the Sub-Adviser shall
suffer irreparable harm for which monetary damages may be inadequate and thus,
the Sub-Adviser shall be entitled to injunctive relief, as well as any other
remedy available under law.
15. AMENDMENTS TO THE AGREEMENT
Except to the extent permitted by the Investment Company Act or the rules
or regulations thereunder or pursuant to exemptive relief granted by the SEC,
this Agreement may be amended by the parties only if such amendment, if
material, is specifically approved by the vote of a
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majority of the outstanding voting securities of the Portfolio (unless such
approval is not required by Section 15 of the Investment Company Act as
interpreted by the SEC or its staff or unless the SEC has granted an exemption
from such approval requirement) and by the vote of a majority of the Independent
Trustees cast in person at a meeting called for the purpose of voting on such
approval. The required shareholder approval shall be effective with respect to
the Portfolio if a majority of the outstanding voting securities of the
Portfolio vote to approve the amendment, notwithstanding that the amendment may
not have been approved by a majority of the outstanding voting securities of any
other Portfolio affected by the amendment or all the Portfolios of the Trust.
16. ASSIGNMENT
Any assignment (as that term is defined in the Investment Company Act) of
the Agreement made by the Sub-Adviser shall result in the automatic termination
of this Agreement, as provided in Section 13 hereof. Notwithstanding the
foregoing, no assignment shall be deemed to result from any changes in the
directors, officers or employees of such Sub-Adviser except as may be provided
to the contrary in the Investment Company Act or the rules or regulations
thereunder. The Sub-Adviser agrees that it will notify the Trust and the Adviser
of any changes in its key employees within a reasonable time thereafter.
17. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to each Portfolio.
18. HEADINGS
The headings in the sections of this Agreement are inserted for convenience
of reference only and shall not constitute a part hereof.
19. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the address listed below of each applicable party in
person or by registered or certified mail or a private mail or delivery service
providing the sender with notice of receipt or such other address as specified
in a notice duly given to the other parties. Notice shall be deemed given on the
date delivered or mailed in accordance with this paragraph.
For: BHR Fund Advisors, L.P.
0000 Xxxx Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx
For: Mount Xxxxx Management Corp.
________________________________
________________________________
________________________________
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________________________________
________________________________
20. SEVERABILITY
Should any portion of this Agreement for any reason be held to be void in
law or in equity, the Agreement shall be construed, insofar as is possible, as
if such portion had never been contained herein.
21. TRUST AND SHAREHOLDER LIABILITY
The Adviser and the Sub-Adviser are hereby expressly put on notice of the
limitation of shareholder liability as set forth in the Trust Declaration and
agree that obligations assumed by the Trust pursuant to this Agreement shall be
limited in all cases to the Trust and its assets, and if the liability relates
to one or more series, the obligations hereunder shall be limited to the
respective assets of the Portfolio. The Adviser and the Sub-Adviser further
agree that they shall not seek satisfaction of any such obligation from the
shareholders or any individual shareholder of the Portfolio(s), nor from the
Trustees or officers, or from any individual Trustee or officer of the Trust.
22. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware, without reference to conflict
of law or choice of law doctrines, or any of the applicable provisions of the
Investment Company Act. To the extent that the laws of the State of Delaware, or
any of the provisions in this Agreement, conflict with applicable provisions of
the Investment Company Act, the latter shall control.
23. INTERPRETATION
Any question of interpretation of any term or provision of this Agreement
having a counterpart in or otherwise derived from a term or provision of the
Investment Company Act shall be resolved by reference to such term or provision
of the Investment Company Act and to interpretations 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
Investment Company Act. Specifically, the terms "vote of a majority of the
outstanding voting securities," "interested persons," "assignment," and
"affiliated persons," as used herein shall have the meanings assigned to them by
Section 2(a) of the Investment Company Act. In addition, where the effect of a
requirement of the Investment Company Act reflected in any provision of this
Agreement is relaxed by a rule, regulation or order of the SEC, whether of
special or of general application, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
24. THIRD PARTY BENEFICIARY
The Adviser and Sub-Adviser expressly agree that the Trust shall be deemed
an intended third party beneficiary of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first mentioned above.
BHR FUND ADVISORS, L.P. MOUNT XXXXX MANAGEMENT CORPORATION
By: By:
--------------------------------- ------------------------------------
Name: Name:
Title: Title:
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APPENDIX A
TO
INVESTMENT SUB-ADVISORY AGREEMENT
Mount Xxxxx U.S. Focused Equity Fund Class I
Mount Xxxxx U.S. Focused Equity Fund Class II
-00-
XXXXXXXX X
TO
INVESTMENT SUB-ADVISORY AGREEMENT
Name of Portfolio Annual Sub-Advisory Fee
--------------------------------------------------------------------------------
Mount Xxxxx U.S. Focused Equity Fund 0.25% on the first $200,000,000;
0.60% on the balance
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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