EX-99.23(d)(1)
INTERIM INVESTMENT MANAGEMENT AGREEMENT
BHR INSTITUTIONAL FUNDS
AGREEMENT made this __ day of ________ 2008, by and between BHR
Institutional Funds, a Delaware statutory trust (the "Trust"), and BHR Fund
Advisors, LP, a Delaware limited partnership (the "Adviser").
WHEREAS, the Trust is an open-end, management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, pursuant to an Investment Management Agreement dated as of October
24, 2006 (the "Prior Investment Management Agreement") by and between the Trust
and the Adviser, the Adviser has heretofore served as investment adviser to each
series of the Trust set forth on Schedule A of this Agreement (each a "Fund" and
collectively the "Funds"):
WHEREAS, as of the date hereof, DundeeWealth Inc. has acquired a majority
of the partnership interests of the Adviser, thereby causing the Prior
Investment Management Agreement to terminate in accordance with its terms; and
WHEREAS, in accordance with Rule 15a-4 under the 1940 Act, the parties wish
to enter into this Agreement pursuant to which the Trust seeks the benefit of
the Adviser's services in managing each Fund's assets and in the conduct of
certain of its affairs and the Adviser agrees to render such services to the
Trust.
NOW, THEREFORE, in consideration of mutual covenants herein contained, the
parties hereto agree as follows:
1. APPOINTMENT AND ACCEPTANCE. The Trust hereby appoints the Adviser to act
as Adviser to the Funds for the period and on the terms set forth in this
Agreement. The Adviser accepts such appointment and agrees to furnish the
services herein set forth for the compensation herein provided. Additional
investment portfolios may from time to time be added to those covered by this
Agreement by the parties executing a new Schedule A which shall become effective
upon its execution and shall supersede any Schedule A having an earlier date.
The Adviser will, at its own expense, render the services and provide the office
space, furnishings and equipment, and personnel (including any sub-Advisers)
required by it to perform the services on the terms and for the compensation
provided herein. The Adviser will not, however, pay for the cost of securities,
commodities, and other investments (including brokerage commissions and other
transaction charges, if any) purchased or sold for any Fund.
2. DUTIES OF ADVISER. The Trust employs the Adviser to furnish and manage a
continuous investment program for the Funds, and to hire (subject to the
approval of the Trust's Board of Trustees ("Board") and, except as otherwise
permitted under the terms of any applicable exemptive relief obtained from the
Securities and Exchange Commission, or by rule or regulation, a majority of the
outstanding voting securities of each affected Fund) and thereafter supervise
the investment activities of one or more sub-advisers deemed necessary to carry
out the investment program of each Fund. The Adviser will continuously review,
supervise and (where appropriate) administer the investment program of each
Fund, to determine in its discretion (where appropriate) the securities to be
purchased, held, sold or exchanged, to provide the Trust with records concerning
the Adviser's activities which the Trust is required to maintain and to render
regular reports to the Trust's officers and Trustees concerning the Adviser's
discharge of the foregoing responsibilities. The retention of a sub-adviser by
the Adviser shall not relieve the Adviser of its responsibilities under this
Agreement.
The Adviser shall discharge the foregoing responsibilities subject to the
control of the Trust's Board and in compliance with such policies as the Board
may from time to time establish, with the objectives, policies, and limitations
for each such Fund set forth in the Fund's Prospectus and Statement of
Additional Information as amended from time to time, and with applicable laws
and regulations.
3. FUND TRANSACTIONS. The Adviser is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio securities for
the Funds and is directed to use its best efforts to obtain "best execution,"
considering the Fund's investment objectives, policies, and restrictions as
stated in the Funds' Prospectus(es) and Statement(s) of Additional Information,
as the same may be amended, supplemented or restated from time to time, and
resolutions of the Trust's Board. The Adviser will promptly communicate to the
officers and the Board 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, 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 or as described from time to time by the Funds'
Prospectuses and Statement of Additional Information.
4. COMPENSATION OF THE ADVISER. For the services provided and the expenses
assumed pursuant to this Agreement, the Trust shall pay to the Adviser
compensation at the rate specified on Schedule B 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 appropriate Schedule, to the assets. The fee shall be based on
the average daily net assets for the month involved. The Adviser may, in its
discretion and from time to time, waive all or a portion of its fee.
All rights of compensation under this Agreement for services performed as of the
termination date shall survive the termination of this Agreement.
During the term of this Agreement, any compensation payable to the Adviser under
this Agreement shall be held in an interest bearing escrow account with PFPC
Trust Company on behalf of each Fund pursuant to the terms of Escrow Agreements
in substantially the form of Exhibit A hereto. If, during the term of this
Agreement, a new investment management agreement with the Adviser is approved by
a majority of a Fund's outstanding voting securities, then the amount held in
the escrow account on behalf of the Fund (plus interest and income earned
thereon and proceeds thereof) shall be paid to the Adviser. If, however, a new
investment management agreement is not approved by a majority of a Fund's
outstanding voting securities (as defined in the 1940 Act), then the 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).
5. OTHER EXPENSES. The Adviser shall pay all expenses of printing and
mailing reports, prospectuses, statements of additional information, and sales
literature relating to the solicitation of prospective clients. The Trust shall
pay all expenses relating to mailing to existing shareholders prospectuses,
statements of additional information, proxy solicitation material and
shareholder reports.
6. EXCESS EXPENSES. If the expenses for any Fund 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 of a Fund are qualified for offer and sale, the
Adviser shall bear such excess cost.
However, the Adviser will not bear expenses of any Fund which would result in
the Fund's inability to qualify as a regulated investment company under
provisions of the Internal Revenue Code. Payment of expenses by the Adviser
pursuant to this Section 6 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 4 and, if such reduction shall be
insufficient to offset such expenses, by reimbursing the Trust.
7. BOOKS AND RECORDS. The Adviser will maintain all books and records with
respect to the securities transactions of the Funds and will furnish to the
Trust's Board such periodic and special reports as the Board may reasonably
request. 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.
Any records required to be maintained and preserved pursuant to the provisions
of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 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.
8. STATUS OF 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.
9. LIMITATION OF LIABILITY OF 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 law or Federal securities 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 Trust's Board, subject to the rules
and regulations of the Securities and Exchange Commission.
11. AUTHORITY; NO CONFLICT. The Adviser represents, warrants and agrees
that: it has the authority to enter into and perform the services contemplated
by this Agreement; and 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.
12. LICENSE OF ADVISER'S NAME. The parties agree that the name of the
Adviser, the names of any affiliates of the Adviser and any derivative or logo
or trademark or service ▇▇▇▇ or trade name are the valuable property of the
Adviser and its affiliates. The Adviser hereby agrees to grant a license to the
Trust for use of its name in the names of the Funds for the term of this
Agreement and such license shall terminate upon termination of this Agreement.
If the Trust makes any unauthorized use of the Adviser's names, derivatives,
logos, trademarks, or service marks or trade names, the parties acknowledge that
the Adviser shall suffer irreparable harm for which monetary
damages may be inadequate and thus, the Adviser shall be entitled to injunctive
relief, as well as any other remedy available under law.
13. DURATION AND TERMINATION. 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 in full force and
effect until the first of the following to occur: the effective date of a new
investment management agreement relating to the Adviser's management of a Fund
which has been approved by a majority of the Fund's outstanding voting
securities, or the 151st calendar day following the date hereof.
Notwithstanding the foregoing, this Agreement may be terminated as to any
particular Fund at any time, without the payment of any penalty by vote of a
majority of members of the Trust's Board or by vote of a majority of the
outstanding voting securities of the Fund on 10 days written notice to the
Adviser, or by the Adviser at any time without the payment of any penalty, on 60
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 13, 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 1940 Act and the rules and regulations
thereunder; subject to such exemptions as may be granted by the Securities and
Exchange Commission under said Act.
14. 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 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇
▇▇▇▇▇▇, and if to the Adviser at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇.
15. 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.
16. GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the State of Delaware, without reference to conflict of law or choice of
law doctrines, and the applicable provisions of the 1940 Act. To the extent that
the applicable laws of the State of Delaware, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control.
A copy of the Declaration of Trust of the Trust is on file with the Secretary of
the State of Delaware, and notice is hereby given that this instrument is
executed on behalf of the Trust's Board, 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. Further,
the obligations of the Trust with respect to any one Fund shall not be binding
upon any other Fund.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the day and year first written above.
BHR INSTITUTIONAL FUNDS
By:
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Attest:
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BHR FUND ADVISORS, LP
By:
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Attest:
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SCHEDULE A
TO THE
INTERIM INVESTMENT MANAGEMENT AGREEMENT
LISTING OF FUNDS
Name of Fund
ClariVest International Equity Fund Class I and Class II
ClariVest ▇▇▇▇ Cap Core Growth Fund Class I and Class II
▇▇▇▇▇ Group Large Cap Core Growth Fund Class I and Class II
Mount ▇▇▇▇▇ U.S. Focused Equity Fund Class I and Class II
Disciplined Global Equity Fund Class I and Class II
AG Mid Cap Core Fund Class I and Class II
AG Mid Cap Growth Fund Class I and Class II
AG Multi Cap Growth Fund Class I and Class II
AG Small Cap Core Fund Class I and Class II
Schedule B
TO
INVESTMENT MANAGEMENT AGREEMENT
Amended April 1, 2008
Annual
Management
Name of Portfolio Fee
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AG Mid Cap Core Fund 0.85%
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AG Mid Cap Growth Fund 0.85%
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AG Multi Cap Growth Fund 0.75%
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AG Small Cap Core Fund 0.90%
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ClariVest International Equity Fund Class I and II 0.75%
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ClariVest ▇▇▇▇ Cap Core Growth Fund Class I and II 0.85%
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▇▇▇▇▇ Group Large Cap Core Growth Fund Class I and II 0.61%
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Mount ▇▇▇▇▇ U.S. Focused Equity Fund Class I and II 0.75%
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Disciplined Global Equity Fund Class I and II 0.65%
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EXHIBIT A
FORM OF ESCROW AGREEMENT