UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of __________, 2006 by and between PFPC
DISTRIBUTORS, INC., a Massachusetts corporation ("PFPC Distributors"), and BHR
INSTITUTIONAL FUNDS, a Delaware statutory trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and is currently offering units of beneficial interest (such units of all series
are hereinafter called the "Shares"), representing interests in investment
series of the Trust (the "Series") which are registered with the Securities and
Exchange Commission (the "SEC") pursuant to the Trust's Registration Statement
on Form N-1A (the "Registration Statement"); and
WHEREAS, the Trust wishes to retain PFPC Distributors to serve as
distributor for the Series to provide for the sale and distribution of the
Shares of the Series and for such additional classes or series as the Trust may
issue, and PFPC Distributors wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. As Used in this Agreement:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as
amended.
(c) "AUTHORIZED PERSON" means any officer of the Trust and any
other person duly authorized by the Trust's Board of Trustees
to give Oral Instructions and Written Instructions on behalf
of the Trust. An Authorized Person's scope of authority may be
limited by setting forth such limitation in a written document
signed by both parties hereto.
(d) "NASD" means the National Association of Securities Dealers,
Inc.
(e) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC
Distributors from an Authorized Person or from a person
reasonably believed by PFPC Distributors to be an Authorized
Person. PFPC Distributors may, in its sole discretion in each
separate instance, consider and rely upon instructions it
receives from an Authorized Person via electronic mail as Oral
Instructions.
(f) "REGISTRATION STATEMENT" means any Registration Statement and
any Prospectus and any Statement of Additional Information
relating to the Trust filed with the SEC and any amendments or
supplements thereto at any time filed with the SEC.
(g) "SECURITIES LAWS" has the meaning ascribed to the term
"Federal Securities Laws" in Rule 38a-1 under the Investment
Company Act of 1940, as amended.
(h) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed by
an Authorized Person and received by PFPC Distributors or (ii)
trade instructions transmitted (and received by PFPC
Distributors) by means of an electronic transaction reporting
system access to which requires use of a password or other
authorized identifier. The instructions may be delivered by
hand, mail, tested telegram, cable, telex or facsimile sending
device.
2. APPOINTMENT. The Trust hereby appoints PFPC Distributors to serve as
the distributor of its Shares in accordance with the terms set forth in
this Agreement. PFPC Distributors accepts such appointment and agrees
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to furnish such services. The Trust understands that PFPC Distributors
is now, and may in the future be, the distributor of the shares of
several investment companies or series (collectively, the "Investment
Entities"), including Investment Entities having investment objectives
similar to those of the Trust. The Trust further understands that
investors and potential investors in the Trust may invest in shares of
such other Investment Entities. The Trust agrees that PFPC
Distributors' duties to such Investment Entities shall not be deemed in
conflict with its duties to the Trust under this Agreement.
3. COMPLIANCE WITH RULES AND REGULATIONS. PFPC Distributors undertakes to
comply with all applicable requirements of the Securities Laws and any
laws, rules and regulations of governmental authorities having
jurisdiction with respect to the duties to be performed by PFPC
Distributors hereunder. Except as specifically set forth herein, PFPC
Distributors assumes no responsibility for such compliance by the Trust
or any other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Distributors
shall act only upon Oral Instructions or Written Instructions.
(b) PFPC Distributors shall be entitled to rely upon any Oral
Instruction or Written Instruction it receives from an
Authorized Person (or from a person reasonably believed by
PFPC Distributors to be an Authorized Person) pursuant to this
Agreement. PFPC Distributors may assume that any Oral
Instruction or Written Instruction received hereunder is not
in any way inconsistent with the provisions of organizational
documents or this Agreement or of any vote, resolution or
proceeding of the Trust's Board of Trustees or of the Trust's
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shareholders, unless and until PFPC Distributors receives
Written Instructions to the contrary.
(c) The Trust agrees to forward to PFPC Distributors Written
Instructions confirming Oral Instructions so that PFPC
Distributors receives the Written Instructions by the close of
business on the same day that such Oral Instructions are
received. The fact that such confirming Written Instructions
are not received by PFPC Distributors or differ from the Oral
Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions or PFPC Distributors' ability to rely upon such
Oral Instructions. Where Oral Instructions or Written
Instructions reasonably appear to have been received from an
Authorized Person, PFPC Distributors shall incur no liability
to the Trust in acting upon such Oral Instructions or Written
Instructions provided that PFPC Distributors' actions comply
with the other provisions of this Agreement.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE TRUST. If PFPC Distributors is in doubt as to
any action it should or should not take, PFPC Distributors may
request directions or advice, including Oral Instructions or
Written Instructions, from the Trust.
(b) ADVICE OF COUNSEL. If PFPC Distributors shall be in doubt as
to any question of law pertaining to any action it should or
should not take, PFPC Distributors may request advice from
counsel of its own choosing (who may be counsel for the Trust,
the Trust's investment adviser or PFPC Distributors, at the
option of PFPC Distributors).
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(c) CONFLICTING ADVICE. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC Distributors receives from the Trust, and
the advice it receives from counsel, PFPC Distributors may
rely upon and follow the advice of counsel. PFPC Distributors
shall provide the Trust with prior written notice of its
intention to follow the advice of counsel that is materially
inconsistent with Oral or Written Instructions. PFPC
Distributors shall further provide the Trust with a copy of
such advice of counsel.
(d) PROTECTION OF PFPC DISTRIBUTORS. PFPC Distributors shall
be protected in any action it takes or does not take in
reliance upon directions or advice or Oral Instructions or
Written Instructions it receives from the Trust or from
counsel and which PFPC Distributors believes, in good faith,
to be consistent with those directions or advice or Oral
Instructions or Written Instructions. Nothing in this section
shall be construed so as to impose an obligation upon PFPC
Distributors (i) to seek such directions or advice or Oral
Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions
or Written Instructions unless, under the terms of other
provisions of this Agreement, the same is a condition of PFPC
Distributors' properly taking or not taking such action.
6. RECORDS; VISITS. The books and records pertaining to the Trust, which
are in the possession or under the control of PFPC Distributors, shall
be the property of the Trust. Such books and records shall be prepared
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and maintained as required by the 1940 Act and other applicable
securities laws, rules and regulations. The Trust and Authorized
Persons shall have access to such books and records at all times during
PFPC Distributors' normal business hours. Upon the reasonable request
of the Trust, copies of any such books and records shall be provided by
PFPC Distributors to the Trust or to an Authorized Person, at the
Trust's expense.
7. CONFIDENTIALITY.
(a) Each party shall keep confidential any information
relating to the other party's business ("Confidential
Information"). Confidential Information shall include (a) any
data or information that is competitively sensitive material,
and not generally known to the public, including, but not
limited to, information about product plans, marketing
strategies, finances, operations, customer relationships,
customer profiles, customer lists, sales estimates, business
plans, and internal performance results relating to the past,
present or future business activities of the Trust or PFPC
Distributors, their respective subsidiaries and affiliated
companies; (b) any scientific or technical information,
design, process, procedure, formula, or improvement that is
commercially valuable and secret in the sense that its
confidentiality affords the Trust or PFPC Distributors a
competitive advantage over its competitors; (c) all
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confidential or proprietary concepts, documentation, reports,
data, specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how, and trade
secrets, whether or not patentable or copyrightable; and (d)
anything designated as confidential. Notwithstanding the
foregoing, information shall not be Confidential Information
and shall not be subject to such confidentiality obligations
if it: (a) is already known to the receiving party at the time
it is obtained; (b) is or becomes publicly known or available
through no wrongful act of the receiving party; (c) is
rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a
third party without restriction; (e) is requested or required
to be disclosed by the receiving party pursuant to a court
order, subpoena, governmental or regulatory agency request or
law (provided the receiving party will provide the other party
written notice of the same, to the extent such notice is
permitted); (f) is relevant to the defense of any claim or
cause of action asserted against the receiving party; (g)
release of such information by PFPC Distributors is necessary
in connection with the provision of services under this
Agreement; or (h) has been or is independently developed or
obtained by the receiving party. The provisions of this
Section 7 shall survive termination of this Agreement for a
period of three (3) years after such termination.
(b) Notwithstanding any provision herein to the contrary, each
party hereto agrees that any Nonpublic Personal Information,
as defined under Section 248.3(t) of Regulation S-P
("Regulation S-P"), promulgated under the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act (the "Act"), disclosed by a party hereunder is for the
specific purpose of permitting the other party to perform the
services set forth in this Agreement. Each party agrees that,
with respect to such information, it will comply with
Regulation S-P and the Act and that it will not disclose any
Nonpublic Personal Information received in connection with
this Agreement to any other party, except to the extent as
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necessary to carry out the services set forth in this
Agreement or as otherwise permitted by Regulation S-P or the
Act.
8. COMPENSATION.
(a) As compensation for services rendered by PFPC Distributors
during the term of this Agreement, the Trust will pay to PFPC
Distributors a fee or fees as may be agreed to from time to
time in writing by the Trust and PFPC Distributors. The Trust
acknowledges that PFPC Distributors may receive float benefits
and/or investment earnings in connection with maintaining
certain accounts required to provide services under this
Agreement.
(b) The undersigned hereby represents and warrants to PFPC
Distributors that (i) the terms of this Agreement, (ii) the
fees and expenses associated with this Agreement, and (iii)
any benefits accruing to PFPC Distributors or sponsor to the
Trust in connection with this Agreement, including but not
limited to any fee waivers, conversion cost reimbursements, up
front payments, signing payments or periodic payments made or
to be made by PFPC Distributors to such adviser or sponsor or
any affiliate of the Trust relating to this Agreement have
been fully disclosed to the Board of Trustees of the Trust and
that, if required by applicable law, such Board of Trustees
has approved or will approve the terms of this Agreement, any
such fees and expenses, and any such benefits.
9. INDEMNIFICATION.
(a) The Trust agrees to indemnify and hold harmless PFPC
Distributors and its affiliates from all taxes, charges,
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expenses, assessments, claims and liabilities (including,
without limitation, attorneys' fees and disbursements and
liabilities arising under the Securities Laws and any state
and foreign securities and blue sky laws) arising directly or
indirectly from any action or omission to act which PFPC
Distributors takes in connection with the provision of
services to the Trust. Neither PFPC Distributors, nor any of
its affiliates, shall be indemnified against any liability (or
any expenses incident to such liability) caused by PFPC
Distributors' or its affiliates' own willful misfeasance, bad
faith, negligence or reckless disregard of its duties and
obligations under this Agreement.
(b) The Trust agrees to indemnify and hold harmless PFPC
Distributors, its officers, directors, and employees, and any
person who controls PFPC Distributors within the meaning of
Section 15 of the 1933 Act, free and harmless (a) from and
against any and all claims, costs, expenses (including
reasonable attorneys' fees) losses, damages, charges, payments
and liabilities of any sort or kind which PFPC Distributors,
its officers, directors, employees or any such controlling
person may incur under the 1933 Act, under any other statute,
at common law or otherwise, arising out of or based upon: (i)
any untrue statement, or alleged untrue statement, of a
material fact contained in the Trust's Registration Statement,
Prospectus, Statement of Additional Information, or sales
literature (including amendments and supplements thereto), or
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(ii) any omission, or alleged omission, to state a material
fact required to be stated in the Trust's Registration
Statement, Prospectus, Statement of Additional Information or
sales literature (including amendments or supplements
thereto), necessary to make the statements therein not
misleading, provided, however, that insofar as losses, claims,
damages, liabilities or expenses arise out of or are based
upon any such untrue statement or omission or alleged untrue
statement or omission made in reliance on and in conformity
with information furnished to the Trust by PFPC Distributors
or its affiliated persons for use in the Trust's Registration
Statement, Prospectus, or Statement of Additional Information
or sales literature (including amendments or supplements
thereto), such indemnification is not applicable; and (b) from
and against any and all such claims, demands, liabilities and
expenses (including such costs and counsel fees) which you,
your officers and directors, or such controlling person, may
incur in connection with this Agreement or PFPC Distributors'
performance hereunder (but excluding such claims, demands,
liabilities and expenses (including such costs and counsel
fees) arising out of or based upon any untrue statement, or
alleged untrue statement, of a material fact contained in any
Registration Statement or any Prospectus or arising out of or
based upon any omission, or alleged omission, to state a
material fact required to be stated in either any Registration
Statement or any Prospectus or necessary to make the
statements in either thereof not misleading), unless such
claims, demands, liabilities and expenses (including such
costs and counsel fees) arise by reason of PFPC Distributors'
willful misfeasance, bad faith or negligence in the
performance of PFPC Distributors' duties hereunder. The Trust
acknowledges and agrees that in the event that PFPC
Distributors, at the request of the Trust, is required to give
indemnification comparable to that set forth in this paragraph
to any broker-dealer selling Shares of the Trust or servicing
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agent servicing the shareholders of the Trust and such
broker-dealer or servicing agent shall make a claim for
indemnification against PFPC Distributors, PFPC Distributors
shall make a similar claim for indemnification against the
Trust.
(c) PFPC Distributors agrees to indemnify and hold harmless
the Trust, its several officers and Board Members and each
person, if any, who controls a Series within the meaning of
Section 15 of the 1933 Act against any and all claims, costs,
expenses (including reasonable attorneys' fees), losses,
damages, charges, payments and liabilities of any sort or kind
which the Trust, its officers, Board Members or any such
controlling person may incur under the 1933 Act, under any
other statute, at common law or otherwise, but only to the
extent that such liability or expense incurred by the Trust,
its officers or Board Members, or any controlling person
resulting from such claims or demands arose out of the
acquisition of any Shares by any person which may be based
upon any untrue statement, or alleged untrue statement, of a
material fact contained in the Trust's Registration Statement,
Prospectus or Statement of Additional Information (including
amendments and supplements thereto), or any omission, or
alleged omission, to state a material fact 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 or confirmed in writing to the
Trust by PFPC Distributors or its affiliated persons (as
defined in the 1940 Act). The foregoing rights of
indemnification shall be in addition to any other rights to
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which the Trust or any such person shall be entitled to as a
matter of law.
(d) In any case in which one party hereto (the "Indemnifying
Party") may be asked to indemnify or hold the other party
hereto (the "Indemnified Party") harmless, the Indemnified
Party will notify the Indemnifying Party promptly after
identifying any situation which it believes presents or
appears likely to present a claim for indemnification (an
"Indemnification Claim") against the Indemnifying Party,
although the failure to do so shall not prevent recovery by
the Indemnified Party, and shall keep the Indemnifying Party
advised with respect to all developments concerning such
situation. The Indemnifying Party shall have the option to
defend the Indemnified Party against any Indemnification Claim
which may be the subject of this indemnification, and, in the
event that the Indemnifying Party so elects, such defense
shall be conducted by counsel chosen by the Indemnifying Party
and satisfactory to the Indemnified Party, and thereupon the
Indemnifying Party shall take over complete defense of the
Indemnification Claim and the Indemnified Party shall sustain
no further legal or other expenses in respect of such
Indemnification Claim. In the event that the Indemnifying
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Party does not elect to assume the defense of any such suit,
or in case the Indemnified Party reasonably does not approve
of counsel chosen by the Indemnifying Party, or in case there
is a conflict of interest between the Indemnifying Party or
the Indemnified Party, the Indemnifying Party will reimburse
the Indemnified Party for the fees and expenses of any counsel
retained by the Indemnified Party. The Trust agrees promptly
to notify PFPC Distributors of the commencement of any
litigation or proceedings against the Trust or any of its
officers or directors in connection with the issue and sale of
any Shares. The Indemnified Party will not confess any
Indemnification Claim or make any compromise in any case in
which the Indemnifying Party will be asked to provide
indemnification, except with the Indemnifying Party's prior
written consent.
10. RESPONSIBILITY OF PFPC DISTRIBUTORS.
(a) PFPC Distributors shall be under no duty to take any
action hereunder on behalf of the Trust except as specifically
set forth herein or as may be specifically agreed to by PFPC
Distributors and the Trust in a written amendment hereto. PFPC
Distributors shall be obligated to exercise care and diligence
in the performance of its duties hereunder and to act in good
faith in performing services provided for under this
Agreement. PFPC Distributors shall be liable only for any
damages arising out of PFPC Distributors' failure to perform
its duties under this Agreement to the extent such damages
arise out of PFPC Distributors' willful misfeasance, bad
faith, negligence or reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PFPC Distributors shall
not be liable for losses beyond its control, including,
without limitation, delays or errors or loss of data occurring
by reason of circumstances beyond PFPC Distributors' control,
provided that PFPC Distributors has acted in accordance with
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the standard set forth in Section 10(a) above; and (ii) PFPC
Distributors shall not be under any duty or obligation to
inquire into and shall not be liable for the validity or
invalidity or authority or lack thereof of any Oral
Instruction or Written Instruction, notice or other instrument
which conforms to the applicable requirements of this
Agreement, and which PFPC Distributors reasonably believes to
be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC Distributors nor its affiliates shall be liable
for any consequential, special or indirect losses or damages,
whether or not the likelihood of such losses or damages was
known by PFPC Distributors or its affiliates.
(d) Each party shall have a duty to mitigate damages for which
the other party may become responsible.
(e) The provisions of this Section 10 shall survive termination of
this Agreement.
(f) Notwithstanding anything in this Agreement to the contrary,
PFPC shall have no liability either for any error or omission
of any of its predecessors as servicer on behalf of the Trust
or for any failure to discover any such error or omission.
11. DUTIES AND OBLIGATIONS OF THE TRUST.
(a) The Trust represents to PFPC Distributors that all
Registration Statements and Prospectuses filed by the Trust
with the SEC under the 1933 Act with respect to the Shares
have been prepared in conformity with the requirements of the
1933 Act and the rules and regulations of the SEC thereunder.
Except as to information included in the Registration
Statement in reliance upon information provided to the Trust
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by PFPC Distributors or any affiliate of PFPC Distributors
expressly for use in the Registration Statement, the Trust
represents and warrants to PFPC Distributors that any
Registration Statement, when such Registration Statement
becomes effective, will contain statements required to be
stated therein in conformity with the 1933 Act and the rules
and regulations of the SEC; that all statements of fact
contained in any such Registration Statement will be true and
correct when such Registration Statement becomes effective;
and that no Registration Statement when such Registration
Statement becomes effective will include an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading to a purchaser of the Shares. PFPC
Distributors may but shall not be obligated to propose from
time to time such amendment or amendments to any Registration
Statement and such supplement or supplements to any Prospectus
as, in the light of future developments, may, in the opinion
of the PFPC Distributors' counsel, be necessary or advisable.
PFPC Distributors shall promptly notify the Trust of any
advice given to it by its counsel regarding the necessity or
advisability of amending or supplementing such Registration
Statement. If the Trust shall not propose such amendment or
amendments and/or supplement or supplements within fifteen
days after receipt by the Trust of a written request from PFPC
Distributors to do so, PFPC Distributors may, at its option,
terminate this Agreement. The Trust shall not file any
amendment to any Registration Statement or supplement to any
Prospectus without giving PFPC Distributors reasonable notice
thereof in advance; provided, however, that nothing contained
in this Agreement shall in any way limit the Trust's right to
file at any time such amendments to any Registration
Statements and/or supplements to any Prospectus, of whatever
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character, as the Trust may deem advisable, such right being
in all respects absolute and unconditional. The Trust
authorizes PFPC Distributors to use any Prospectus or
Statement of Additional Information in the form furnished from
time to time in connection with the sale of the Shares.
(b) The Trust represents and warrants to PFPC Distributors
that the Trust is a series of investment company registered
under the 1940 Act and the Shares sold by each Series are, and
will be, registered under the 1933 Act.
(c) The net asset value of the Shares shall be determined in
the manner provided in the then current Prospectus and
Statement of Additional Information relating to the Shares,
and when determined shall be applicable to all transactions as
provided in the Prospectus. The net asset value of the Shares
shall be calculated by the Trust or by another entity on
behalf of the Trust. PFPC Distributors shall have no duty to
inquire into, or liability for, the accuracy of the net asset
value per Share as calculated.
(d) Whenever in its judgment such action is warranted by
unusual market, economic or political conditions or abnormal
circumstances of any kind, the Trust may decline to accept any
orders for, or make any sales of, the Shares until such time
as the Trust deems it advisable to accept such orders and to
make such sales, and the Trust advises PFPC Distributors
promptly of such determination.
(e) The Trust agrees to execute any and all documents and to
furnish any and all information and otherwise to take all
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actions that may be reasonably necessary in connection with
the qualification of the Shares for sale in such states as
PFPC Distributors may designate. The Trust shall notify PFPC
Distributors in writing of the states in which the Shares may
be sold and shall notify PFPC Distributors in writing of any
changes to the information contained in the previous
notification.
12. DUTIES AND OBLIGATIONS OF PFPC DISTRIBUTORS.
(a) PFPC Distributors will act on behalf of the Trust for the
distribution of the Shares covered by the Registration
Statement under the 1933 Act and provide the distribution
services outlined below and as follows: (i) preparation and
execution of sales or servicing agreements, (ii) preparation
of quarterly 12b-1 Reports to the Board and (iii) literature
review, recommendations and submission to the NASD.
(b) PFPC Distributors agrees to use efforts deemed appropriate
by PFPC Distributors to solicit orders for the sale of the
Shares and will undertake such advertising and promotion as it
believes reasonable in connection with such solicitation. To
the extent that PFPC Distributors receives fees under any plan
adopted by the Trust pursuant to Rule 12b-1 under the 1940
Act, PFPC Distributors agrees to furnish and/or enter into
arrangements with others for the furnishing of marketing or
sales services with respect to the Shares as may be required
pursuant to such plan. To the extent that PFPC Distributors
receives shareholder services fees under any shareholder
services plan adopted by the Trust, PFPC Distributors agrees
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to furnish and/or enter into arrangements with others for the
furnishing of, personal and/or account maintenance services
with respect to the relevant shareholders of the Trust as may
be required pursuant to such plan. It is contemplated that
PFPC Distributors will enter into sales or servicing
agreements with securities dealers, financial institutions and
other industry professionals, such as investment advisers,
accountants and estate planning firms. PFPC Distributors will
require each dealer with whom PFPC Distributors has a selling
agreement to conform to the applicable provisions of the
Prospectus, with respect to the public offering price of the
Shares, and PFPC Distributors shall not cause the Trust to
withhold the placing of purchase orders so as to make a profit
thereby.
(c) PFPC Distributors shall not utilize any materials in
connection with the sale or offering of Shares except the
Trust's Prospectus and Statement of Additional Information and
such other materials as the Trust shall provide or approve.
The Trust agrees to furnish PFPC Distributors with sufficient
copies of any and all: agreements, plans, communications with
the public or other materials which the Trust intends to use
in connection any sales of Shares, in adequate time for PFPC
Distributors to file and clear such materials with the proper
authorities before they are put in use. PFPC Distributors and
the Trust may agree that any such material does not need to be
filed subsequent to distribution. In addition, the Trust
agrees not to use any such materials until so filed and
cleared for use, if required, by appropriate authorities as
well as by PFPC Distributors.
(d) PFPC Distributors will transmit any orders received by it
for purchase or redemption of the Shares to the transfer agent
for the Trust. PFPC Distributors will have no liability for
payment for the purchase of Shares sold pursuant to this
Agreement or with respect to redemptions or repurchases of
Shares.
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(e) No Shares shall be offered by either PFPC Distributors or
the Trust under any of the provisions of this Agreement and no
orders for the purchase or sale of Shares hereunder shall be
accepted by the Trust if and so long as effectiveness of the
Registration Statement then in effect or any necessary
amendments thereto shall be suspended under any of the
provisions of the 1933 Act, or if and so long as a current
Prospectus as required by Section 5(b)(2) of the 1933 Act is
not on file with the SEC; provided, however, that nothing
contained in this paragraph shall in any way restrict or have
any application to or bearing upon the Trust's obligation to
redeem Shares tendered for redemption by any shareholder in
accordance with the provisions of the Trust's Registration
Statement, Articles of Incorporation, or bylaws.
13. DURATION AND TERMINATION. This Agreement shall become effective on the
date first written above and, unless sooner terminated as provided
herein, shall continue for an initial two-year term and thereafter
shall be renewed for successive one-year terms, provided such
continuance is specifically approved at least annually by (i) the
Trust's Board of Trustees or (ii) by a vote of a majority (as defined
in the 1940 Act and Rule 18f-2 thereunder) of the outstanding voting
securities of the Trust, provided that in either event the continuance
is also approved by a majority of the Board Members who are not parties
to this Agreement and who are not interested persons (as defined in the
▇▇▇▇ ▇▇▇) of any party to this Agreement, by vote cast in person at a
meeting called for the purpose of voting on such approval. This
Agreement is terminable without penalty, on at least sixty days'
written notice, by the Trust's Board of Trustees, by vote of a majority
(as defined in the 1940 Act and Rule 18f-2 thereunder) of the
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outstanding voting securities of the Trust, or by PFPC Distributors.
This Agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act and the rules thereunder). In
the event the Trust gives notice of termination, all expenses
associated with movement (or duplication) of records and materials and
conversion thereof to a successor transfer agent or other service
provider, and all trailing expenses incurred by PFPC Distributors, will
be borne by the Trust.
14. NOTICES. Notices shall be addressed (a) if to PFPC Distributors, at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President (or
such other address as PFPC may inform the Trust in writing); (b) if to
the Trust, at __________, ATTENTION: with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq., Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, One ▇▇▇▇▇ Square, 18th and ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or (c) if to neither of the foregoing,
at such other address as shall have been given by like notice to the
sender of any such notice or other communication by the other party. If
notice is sent by confirming telegram, cable, telex or facsimile
sending device, it shall be deemed to have been given immediately. If
notice is sent by first-class mail, it shall be deemed to have been
given three days after it has been mailed. If notice is sent by
messenger, it shall be deemed to have been given on the day it is
delivered.
15. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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17. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
18. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties.
(b) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Trust agrees
not to make any modifications to its registration statement or
adopt any policies which would affect materially the
obligations or responsibilities of PFPC Distributors hereunder
without the prior written approval of PFPC Distributors, which
approval shall not be unreasonably withheld or delayed.
(c) CAPTIONS. 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.
(d) INFORMATION. The Trust will provide such information and
documentation as PFPC Distributor may reasonably request in
connection with services provided by PFPC Distributor to the
Trust.
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(e) GOVERNING LAW. This Agreement shall be deemed to be a contract
made in Delaware and governed by Delaware law, without regard
to principles of conflicts of law.
(f) PARTIAL INVALIDITY. 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.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(h) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided
in this Agreement, PFPC Distributors hereby disclaims all
representations and warranties, express or implied, made to
the Trust or any other person, including, without limitation,
any warranties regarding quality, suitability,
merchantability, fitness for a particular purpose or otherwise
(irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to
services provided under this Agreement. PFPC Distributors
disclaims any warranty of title or non-infringement except as
otherwise set forth in this Agreement.
(i) FACSIMILE SIGNATURES. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
(j) LIABILITY. The Trust and PFPC Distributors agree that the
obligations of the Trust under this Agreement shall not be
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binding upon any of the Trustees, shareholders, nominees,
officers, employees or agents, whether past, present or
future, of the Trust individually, but are binding only upon
the assets of the Trust or applicable Series, as provided in
the Trust's agreement and declaration of trust. The execution
and delivery of this Agreement have been authorized by the
Trustees of the Trust, and signed by an authorized officer of
the Trust, acting as such, and neither such authorization by
the Trustees nor such execution by such officer shall be
deemed to have been made by them or any shareholder of the
Trust individually or to impose any liability on any of them
or any shareholder of the Trust personally, but shall bind
only the assets and property of the Trust or applicable
Series, as provided in the Trust's agreement and declaration
of trust.
(k) CUSTOMER IDENTIFICATION PROGRAM NOTICE. To help the U.S.
government fight the funding of terrorism and money laundering
activities, U.S. Federal law requires each financial
institution to obtain, verify, and record certain information
that identifies each person who initially opens an account
with that financial institution on or after October 1, 2003.
Consistent with this requirement, PFPC Distributors will
request (or already has requested) the Trust's name, address
and taxpayer identification number or other government-issued
identification number, and, if such party is a natural person,
that party's date of birth. PFPC Distributor may also ask (and
may have already asked) for additional identifying
information, and PFPC Distributor may take steps (and may have
already taken steps) to verify the authenticity and accuracy
of these data elements.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC DISTRIBUTORS, INC.
By:______________________
Title:___________________
BHR INSTITUTIONAL FUNDS
By:______________________
Title:___________________
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