INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT, dated as of ________ __, 2006 by and between BHR Fund
Advisors, L.P., a Delaware limited partnership (the "Adviser"), and ClariVest
Asset Management LLC, a Delaware limited liability company (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 investment advisory agreement
(the "Investment Advisory Agreement") dated October __, 2006 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 Advisory
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 strategies substantially similar
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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 obligation to
purchase or to sell or to recommend for purchase or sale for the
Portfolio any investment that the Sub-Adviser, its affiliates,
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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.
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,
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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.
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
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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 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
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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.
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.
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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 upon the date first above
written, provided that this Agreement shall not take effect unless it has first
been approved: (i) by a vote of a majority of those trustees of the Trust who
are not "interested persons" (as defined in the Investment Company Act) of any
party to this Agreement ("Independent Trustees"), cast in person at a meeting
called for the purpose of voting on such approval, and (ii) by vote of a
majority of the Portfolio's outstanding securities. This Agreement shall
continue in effect for a period more than two years from the date of its
execution only so long as such continuance is specifically approved at least
annually by the Board of Trustees provided that in such event such continuance
shall also be approved 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.
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 sixty (60) 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
Advisory 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
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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
▇▇▇▇ 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 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
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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.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
For: Clarivest
[address]
Attn: [name]
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.
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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.
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. CLARIVEST ASSET MANAGEMENT LLC
By: By:
-------------------------- --------------------------
Name: Name:
Title: Title:
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APPENDIX A
TO
INVESTMENT SUB-ADVISORY AGREEMENT
ClariVest International Equity Fund
ClariVest ▇▇▇▇ Cap Growth Fund
-▇▇-
▇▇▇▇▇▇▇▇ ▇
TO
INVESTMENT SUB-ADVISORY AGREEMENT
APPENDIX B
TO
INVESTMENT SUB-ADVISORY AGREEMENT
---------------------- --------------------------------------
Name of Portfolio Annual Advisory Fee
---------------------- --------------------------------------
ClariVest 0.10% on first $25 million
International Equity 0.15% on next $75 million
Fund 0.35% on next $100 million
0.55% on balance
---------------------- --------------------------------------
ClariVest ▇▇▇▇ Cap 0.10% on first $50 million
Growth Fund 0.73% on banlance
---------------------- --------------------------------------
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