AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement")
is made as of June 13, 2006, between BB&T Funds ("BB&T"), a
Massachusetts business trust, on behalf of Sterling Capital
Small Cap Value Fund, a series of BB&T, and The Advisors' Inner
Circle Fund ("Advisors"), a Massachusetts business trust, on
behalf of the Sterling Capital Small Cap Value Fund, a series of
Advisors. The capitalized terms used herein shall have the
meaning ascribed to them in this Agreement.
PLAN OF REORGANIZATION
(a) Advisors will sell, assign, convey, transfer and
deliver to BB&T, and BB&T will acquire, on the Exchange Date,
all of the properties and assets existing at the Valuation Time
in the Sterling Capital Small Cap Value Fund, a series of
Advisors (the "Sterling Fund"). Such acquisition is to be made
by the Sterling Capital Small Cap Value Fund, a series of BB&T
(the "BB&T Fund").
In consideration therefor, the BB&T Fund shall, on the
Exchange Date, assume all of the liabilities of the Sterling
Fund existing at the Valuation Time and transfer to the Sterling
Fund a number of full and fractional units of beneficial
interest ("Shares") (such Shares being Sterling Shares) of the
BB&T Fund having an aggregate net asset value equal to the value
of all of the assets of the Sterling Fund transferred to the
BB&T Fund on such date less the value of all of the liabilities
of the Sterling Fund assumed by the BB&T Fund on that date. It
is intended that the reorganization described in this Agreement
shall be a tax-free reorganization under Section 368 of the
Internal Revenue Code of 1986, as amended (the "Code").
(b) Upon consummation of the transactions described in
paragraph (a) of this Agreement, the Sterling Fund in complete
liquidation shall distribute to its respective shareholders of
record as of the Exchange Date the BB&T Fund Shares received by
it, each shareholder being entitled to receive that number of
BB&T Fund Shares equal to the total of (i) the proportion which
the number of Shares of the Sterling Fund held by such
shareholder bears to the number of such Shares of the Sterling
Fund outstanding on such date multiplied by (ii) the total
number of BB&T Fund Shares received by the Sterling Fund, as of
the Exchange Date. Sterling Fund shareholders of record holding
Institutional Class Shares will receive Sterling Shares of the
BB&T Fund.
AGREEMENT
BB&T and Advisors represent, warrant and agree as follows:
1. Representations and Warranties of Advisors. Each of
Advisors and the Sterling Fund represent and warrant to and
agree with BB&T and the BB&T Fund that:
(a) Advisors is a business trust duly established and
validly existing under the laws of the Commonwealth of
Massachusetts and has power to carry on its business as it is
now conducted and to carry out its obligations under this
Agreement. Advisors and the Sterling Fund are not required to
qualify as a foreign association in any jurisdiction where the
failure to so qualify would have a material adverse effect on
Advisors or the Sterling Fund. Advisors and the Sterling Fund
have all necessary federal, state and local authorizations to
carry on their business as now being conducted and to fulfill
the terms of this Agreement, except for shareholder approval and
as otherwise described in Section 1(l).
(b) Advisors is registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company, and such registration has not
been revoked or rescinded and is in full force and effect, and
the Sterling Fund is a separate series thereof duly designated
in accordance with the applicable provisions of the 1940 Act and
the Declaration of Trust and Bylaws of Advisors. The Sterling
Fund has met the requirements of subchapter M of the Code for
treatment as a "regulated investment company" within the meaning
of Section 851 of the Code in respect of each taxable year since
the commencement of operations, and will continue to meet such
requirements at all times through the Exchange Date. The
Sterling Fund has not at any time since its inception been
liable for any material income or excise tax pursuant to Section
852 or 4982 of the Code. The Sterling Fund is in compliance in
all material respects with applicable regulations of the
Internal Revenue Service pertaining to the reporting of
dividends and other distributions on and redemptions of its
capital stock and to withholding in respect of dividends and
other distributions to shareholders, and is not liable for any
material penalties which could be imposed thereunder.
(c) The statement of assets and liabilities, statement of
operations, statement of changes in net assets and schedule of
portfolio investments (indicating their market values) for the
Sterling Fund at and for the year ended October 31, 2005, such
statements and schedule having been audited by KPMG LLP,
independent accountants to Advisors, have been furnished to
BB&T. Such statement of assets and liabilities and schedule
fairly presents the financial position of the Sterling Fund as
of October 31, 2005 and said statement of operations and changes
in net assets fairly reflects the results of operations and
changes in net assets for the periods covered thereby in
conformity with generally accepted accounting principles.
(d) The prospectus of the Sterling Fund dated March 1,
2006 (the "Sterling Prospectus") and the Statement of Additional
Information dated March 1, 2006 (the "Sterling SAI") for the
Sterling Fund and on file with the Securities and Exchange
Commission, which have been previously furnished to BB&T, did
not as of their dates and do not as of the date hereof contain
any 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, in light of the circumstances under
which they were made, not misleading.
(e) There are no material legal, administrative or other
proceedings pending or, to the knowledge of Advisors or the
Sterling Fund, overtly threatened against Advisors or the
Sterling Fund which assert liability on the part of Advisors or
the Sterling Fund.
(f) There are no material contracts outstanding to which
Advisors, with respect to the Sterling Fund, or the Sterling
Fund is a party, other than as disclosed in the Sterling
Prospectus and the Sterling SAI or in the Registration Statement
and the Proxy Statement.
(g) Neither Advisors, with respect to the Sterling Fund,
nor the Sterling Fund has any known liabilities of a material
nature, contingent or otherwise, other than those shown as
belonging to it on its statement of assets and liabilities as of
October 31, 2005, and those incurred in the ordinary course of
Advisors' business as an investment company since that date.
Prior to the Exchange Date, Advisors will advise BB&T of all
known material liabilities, contingent or otherwise, incurred by
it, with respect to the Sterling Fund subsequent to October 31,
2005, whether or not incurred in the ordinary course of
business.
(h) As used in this Agreement, the term "Investments"
shall mean the Sterling Fund's investments shown on the schedule
of its portfolio investments as of October 31, 2005, referred to
in Section 1(c) hereof, as supplemented with such changes as
Advisors or the Sterling Fund shall make after October 31, 2005,
which changes shall be disclosed to BB&T, and changes resulting
from stock dividends, stock split-ups, mergers and similar
corporate actions.
(i) As of the Exchange Date, the Sterling Fund shall have
timely filed all federal, state and other tax returns and
reports which have been required to be filed by the Sterling
Fund and shall have timely paid all federal, state and other
taxes shown to be due on said returns or on any assessments
received by the Sterling Fund. As of the Exchange Date, all tax
liabilities of the Sterling Fund shall have been adequately
provided for on its books, and no tax deficiency or liability of
the Sterling Fund shall have been asserted, and no question with
respect thereto shall have been raised, and the Sterling Fund
shall not be under audit by the Internal Revenue Service or by
any state or local tax authority for taxes in excess of those
already paid.
(j) As of both the Valuation Time and the Exchange Date
and except for shareholder approval and otherwise as described
in Section 1(l), Advisors on behalf of the Sterling Fund will
have full right, power and authority to sell, assign, transfer
and deliver the Investments and any other assets and liabilities
of the Sterling Fund to be transferred to the BB&T Fund pursuant
to this Agreement. At the Exchange Date, subject only to the
delivery of the Investments and any such other assets and
liabilities as contemplated by this Agreement, BB&T will, on
behalf of the BB&T Fund, acquire the Investments and any such
other assets subject to no encumbrances, liens or security
interests in favor of any third party creditor of Advisors or
the Sterling Fund and, except as described in Section 1(l),
without any restrictions upon the transfer thereof.
(k) Except as to Investments otherwise disclosed as
unregistered securities pursuant to Section 1(h) hereof, no
registration under the Securities Act of 1933, as amended (the
"1933 Act"), of any of the Investments would be required if they
were, as of the time of such transfer, the subject of a public
distribution by either of Advisors or BB&T.
(l) No consent, approval, authorization or order of any
court or governmental authority is required for the consummation
by Advisors on behalf of the Sterling Fund of the transactions
contemplated by this Agreement, except such as may be required
under the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the 1940 Act, state securities or blue
sky laws (which term as used herein shall include the laws of
the District of Columbia and of Puerto Rico) or the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the "H-S-R
Act").
(m) The registration statement (the "Registration
Statement") filed with the Securities and Exchange Commission
(the "Commission") by BB&T on Form N-14 relating to the BB&T
Fund Shares issuable hereunder, and the proxy statement of
Advisors included therein (the "Proxy Statement"), on the
effective date of the Registration Statement and insofar as they
relate to Advisors and the Sterling Fund, (i) will comply in all
material respects with the provisions of the 1933 Act, the 1934
Act and the 1940 Act and the rules and regulations thereunder
and (ii) will not contain any 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, in light of
the circumstances under which such statements were made, not
misleading; and at the time of the shareholders' meeting
referred to in Section 8(a) below and on the Exchange Date, the
prospectus contained in the Registration Statement of which the
Proxy Statement is a part (the "Prospectus"), as amended or
supplemented by any amendments or supplements filed with the
Commission by BB&T, insofar as it relates to Advisors and the
Sterling Fund, will not contain any 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, in
light of the circumstances under which such statements were
made, not misleading; provided, however, that none of the
representations and warranties in this subsection shall apply to
statements in or omissions from the Registration Statement, the
Prospectus or the Proxy Statement, made in reliance upon or in
conformity with information furnished by BB&T, or the BB&T Fund,
for use in the Registration Statement, Prospectus, or Proxy
Statement.
(n) All of the issued and outstanding Shares of the
Sterling Fund have been offered for sale and sold in conformity
with all applicable federal and state securities laws.
(o) No payments will be made by the Sterling Fund to its
shareholders in connection with or as a result of this Agreement
or the transactions contemplated by this Agreement, except that
the Sterling Fund will, in the ordinary course of its business
as an open-end investment company, make distributions of
dividends paying out investment income or capital gains, and
distributions in redemption of Shares.
(p) The Sterling Fund has not received written notification
from any tax authority that asserts a position contrary to any
of the above representations.
2. Representations and Warranties of BB&T. Each of BB&T
and the BB&T Fund jointly and severally represent and warrant to
and agree with Advisors and the Sterling Fund that:
(a) BB&T is a business trust duly established and validly
existing under the laws of the Commonwealth of Massachusetts and
has power to carry on its business as it is now being conducted
and to carry out its obligations under this Agreement. BB&T and
the BB&T Fund are not required to qualify as a foreign
association in any jurisdiction. BB&T and the BB&T Fund have
all necessary federal, state and local authorizations to own all
of its properties and assets and to carry on its business as now
being conducted and to fulfill the terms of this Agreement,
except as set forth in Section 2(g).
(b) BB&T is registered under the 1940 Act as an open-end
management investment company, and such registration has not
been revoked or rescinded and is in full force and effect, and
the BB&T Fund is a separate series thereof duly designated in
accordance with the applicable provisions of the 1940 Act and
the Declaration of Trust and Bylaws of BB&T. The BB&T Fund,
which has not had active operations prior to the Exchange Date,
intends to qualify as a regulated investment company under Part
I of Subchapter M of the Code.
(c) There are no material legal, administrative or other
proceedings pending or, to the knowledge of BB&T or the BB&T
Fund, overtly threatened against BB&T or the BB&T Fund which
assert liability on the part of BB&T or the BB&T Fund.
(d) There are no material contracts outstanding to which
BB&T or the BB&T Fund is a party, other than as disclosed in the
Prospectus and the corresponding Statement of Additional
Information or in the Registration Statement.
(e) Neither BB&T nor the BB&T Fund has any known
liabilities of a material nature, contingent or otherwise, other
than those incurred in the ordinary course of the business of
BB&T as an investment company. Prior to the Exchange Date, BB&T
will advise Advisors of all known material liabilities,
contingent or otherwise, incurred by it and the BB&T Fund,
whether or not incurred in the ordinary course of business.
(f) No consent, approval, authorization or order of any
governmental authority is required for the consummation by BB&T
or the BB&T Fund of the transactions contemplated by this
Agreement, except such as may be required under the 1933 Act,
the 1934 Act, the 1940 Act, state securities or Blue Sky laws or
the H-S-R Act.
(g) As of both the Valuation Time and the Exchange Date
and otherwise as described in Section 2(g), BB&T on behalf of
the BB&T Fund will have full right, power and authority to
purchase the Investments and any other assets and assume the
liabilities of the Sterling Fund to be transferred to the BB&T
Fund pursuant to this Agreement.
(h) The Registration Statement, the Prospectus and the
Proxy Statement, on the effective date of the Registration
Statement and insofar as they relate to BB&T and the BB&T Fund:
(i) will comply in all material respects with the provisions of
the 1933 Act, the 1934 Act and the 1940 Act and the rules and
regulations thereunder and (ii) will not contain any 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, in light of the circumstances in which they
were made, not misleading; and at the time of the shareholders'
meeting referred to in Section 8(a) and at the Exchange Date,
the Prospectus, as amended or supplemented by any amendments or
supplements filed with the Commission by BB&T or the BB&T Fund,
will not contain any 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, in light of the
circumstances in which they were made, not misleading; provided,
however, that none of the representations and warranties in this
subsection shall apply to statements in or omissions from the
Registration Statement, the Prospectus or the Proxy Statement or
any amendments or supplements thereto made in reliance upon and
in conformity with information furnished by Advisors or the
Sterling Fund for use in the Registration Statement, the
Prospectus or the Proxy Statement. For these purposes,
information shall be permitted "on behalf" of Advisors or the
Sterling Fund if furnished by it or an affiliate or by another
person with the approval of Advisors or the Sterling Fund or
their affiliate.
(i) BB&T Fund Shares to be issued to the Sterling Fund
have been duly authorized and, when issued and delivered
pursuant to this Agreement and the Prospectus, will be legally
and validly issued and will be fully paid and nonassessable by
BB&T and no shareholder of BB&T will have any preemptive right of
subscription or purchase in respect thereof.
(j) The issuance of BB&T Fund Shares pursuant to this
Agreement will be in compliance with all applicable federal and
state securities laws.
(k) Immediately prior to the consummation of the
transactions contemplated by this Agreement, the BB&T Fund will
not hold any property or have any tax attributes (including
those specified in Section 381(c) of the Code), and immediately
following the consummation of such transactions, the BB&T Fund
will possess solely assets and liabilities that were possessed
by the Sterling Fund immediately prior to such transactions,
provided however that at the time of or before such
transactions, the BB&T Fund may hold a nominal amount of assets
to facilitate its organization.
(l) Immediately prior to the consummation of the
transactions contemplated by this Agreement, there shall be no
issued and outstanding Shares of the BB&T Fund (and no options,
warrants, or other rights to subscribe for or purchase Shares of
the BB&T Fund, or securities convertible into Shares of the BB&T
Fund) other than a nominal amount of Shares issued to facilitate
the organization of the BB&T Fund. In connection with the
transactions contemplated by this Agreement all of the BB&T Fund
Shares that are or will be issued (other than a nominal amount
of Shares of the BB&T Fund that may be issued to facilitate the
organization of the BB&T Fund) will be in respect of Sterling
Fund Shares. Immediately following consummation of the
transactions contemplated by the Agreement, all of the
outstanding Shares of the BB&T Fund will be owned by the former
shareholders of the Sterling Fund (other than a nominal amount
of Shares of the BB&T Fund that may be issued to facilitate the
organization of the BB&T Fund), who will own such shares solely
by reason of their ownership of Shares of the Sterling Fund
immediately prior to the transactions contemplated by this
Agreement.
(m) The BB&T Fund was formed for the purpose of effecting
the transactions contemplated by this Agreement and will not
engage in any business prior to the transactions contemplated by
this Agreement. The BB&T Fund has never held, and will not hold
prior to the transactions contemplated by this Agreement,
directly or indirectly, any Sterling Fund Shares.
(n) The BB&T Fund has not yet filed its first federal
income tax return, and, thus, has not yet elected to be a
regulated investment company for federal income tax purposes.
The BB&T Fund will file its first income tax return at the
completion of its first taxable year as a regulated investment
company and until such time will take all steps necessary to
ensure qualification as a regulated investment company under
Sections 851 and 852 of the Code.
(o) No payments will be made by the BB&T Fund to its
shareholders in connection with or as a result of this Agreement
or the transactions contemplated by this Agreement, except that
the BB&T Fund will, in the ordinary course of its business as an
open-end investment company, make distributions of dividends
paying out investment income or capital gains, and distributions
in redemption of Shares.
(p) BB&T through its administrator, transfer agent,
custodian or otherwise, will cooperate fully and in a timely
manner with Advisors and the Sterling Fund in completing each of
the actions required of it and its agents and necessary for
consummation of the transactions described in Sections 3 (a) and
(b) of this Agreement.
3. Reorganization. (a) Subject to the requisite
approval of the shareholders of the Sterling Fund and to the
other terms and conditions contained herein, Advisors and the
Sterling Fund agree to sell, assign, convey, transfer and
deliver to the BB&T Fund, and the BB&T Fund agrees to acquire
from the Sterling Fund, on the Exchange Date all of the
Investments, all of the cash, property, rights, privileges,
powers, franchises and other assets, know or unknown, of the
Sterling Fund in exchange for that number of Shares of the BB&T
Fund provided for in Section 4 and the assumption by the BB&T
Fund of all of the liabilities of, allocated or attributable to,
the Sterling Fund, whether known or unknown, accrued or
unaccrued, absolute or contingent or conditional or unmatured.
Without limiting the foregoing, BB&T agrees to assume the
obligation of Advisors to indemnify and hold harmless the
trustees and officers of Advisors with respect to any action or
omission or alleged action or omission relating to the Sterling
Fund prior to the consummation of the transactions described in
paragraph (a) of this Agreement, including the obligation to
advance expenses, to the maximum extent permitted by applicable
law and as set forth in Advisors' Declaration of Trust and By-
laws. Pursuant to this Agreement, the Sterling Fund will, as
soon as practicable after the Exchange Date, distribute in
liquidation all of the BB&T Fund Shares received by it to its
shareholders in exchange for their Shares of the Sterling Fund.
(b) Advisors, on behalf of the Sterling Fund, will pay or
cause to be paid to the BB&T Fund any interest and cash
dividends received by it on or after the Exchange Date with
respect to the Investments transferred to the BB&T Fund
hereunder. Advisors, on behalf of the Sterling Fund, will
transfer to the BB&T Fund any rights, stock dividends or other
securities received by Advisors or the Sterling Fund after the
Exchange Date as stock dividends or other distributions on or
with respect to the Investments transferred, which rights, stock
dividends and other securities shall be deemed included in the
assets transferred to the BB&T Fund at the Exchange Date and
shall not be separately valued, in which case any such
distribution that remains unpaid as of the Exchange Date shall
be included in the determination of the value of the assets of
the Sterling Fund acquired by the BB&T Fund.
4. Exchange Date; Valuation Time. On the Exchange Date,
BB&T will deliver to Advisors a number of Sterling Shares of the
BB&T Fund having an aggregate net asset value equal to the value
of the assets attributable to the Institutional Class Shares of
the Sterling Fund acquired by the BB&T Fund, less the value of
the liabilities of the Sterling Fund assumed, determined as
hereafter provided in this Section 4.
(a) Subject to Section 4(d) hereof, the value of the
Sterling Fund's net assets will be computed as of the Valuation
Time using the valuation procedures for the BB&T Fund set forth
in the Prospectus and Statement of Additional Information.
(b) Subject to Section 4(d) hereof, the net asset value of
a share of the BB&T Fund will be determined to the nearest full
cent as of the Valuation Time, using the valuation procedures
set forth in the Prospectus.
(c) Subject to Section 4(d), the Valuation Time shall be
4:00 p.m. Eastern Standard time on August 18, 2006 for the
Sterling Fund, or such earlier or later days as may be mutually
agreed upon in writing by the parties hereto (the "Valuation
Time").
(d) No formula will be used to adjust the net asset value
of the Sterling Fund or BB&T Fund to take into account
differences in realized and unrealized gains and losses.
(e) The BB&T Fund shall issue its Shares to the Sterling
Fund on one share deposit receipt registered in the name of the
Sterling Fund. The Sterling Fund shall distribute in
liquidation the BB&T Fund Shares received by it hereunder pro
rata to its shareholders by redelivering such share deposit
receipt to BB&T 's transfer agent which will as soon as
practicable set up open accounts for the Sterling Fund
shareholder in accordance with written instructions furnished by
Advisors.
(f) The BB&T Fund shall assume all liabilities of the
Sterling Fund, as set forth in Section 3(a) hereof, in
connection with the acquisition of assets and subsequent
dissolution of the Sterling Fund or otherwise, except that
recourse for assumed liabilities relating to the Sterling Fund
will be limited to the BB&T Fund.
5. Expenses, Fees, etc. (a) Subject to subsections
5(b) through 5(e), all fees and expenses, including accounting
expenses, portfolio transfer taxes (if any) or other similar
expenses incurred directly in connection with the consummation
by BB&T, the BB&T Fund, Advisors, the Sterling Fund and Sterling
Capital Management LLC, the investment adviser to the BB&T Fund
and the Sterling Fund, of the transactions contemplated by this
Agreement will be borne by Sterling Capital Management LLC,
including the costs of proxy materials, proxy solicitation, and
legal expenses. All such fees and expenses incurred and so
borne by Sterling Capital Management LLC shall be solely and
directly related to the transactions contemplated by this
Agreement and shall be paid directly by Sterling Capital
Management LLC to the relevant providers of services or other
payees, in accordance with the principles set forth in Revenue
Ruling 73-54, 1973-1 C.B. 187. Fees and expenses not incurred
directly in connection with the consummation of the transactions
contemplated by this Agreement will be borne by the party
incurring such fees and expenses. Notwithstanding the
foregoing, expenses will in any event be paid by the party
directly incurring such expenses if and to the extent that the
payment by the other party of such expenses would result in the
disqualification of the BB&T Fund or the Sterling Fund, as the
case may be, as a "regulated investment company" within the
meaning of Section 851 of the Code. Sterling Fund shareholders
will pay their respective expenses, if any, incurred in
connection with the transactions contemplated by this Agreement.
Neither the BB&T Fund nor the Sterling Fund will pay the
Sterling Fund shareholders' expenses.
(b) In the event the transactions contemplated by this
Agreement are not consummated by reason of Advisors being either
unwilling or unable to go forward (other than by reason of the
nonfulfillment or failure of any condition to Advisors'
obligations referred to in Section 8(a) or Section 10), Advisors
shall pay directly all reasonable fees and expenses incurred by
BB&T in connection with such transactions, including, without
limitation, legal, accounting and filing fees.
(c) In the event the transactions contemplated by this
Agreement are not consummated by reason of BB&T being either
unwilling or unable to go forward (other than by reason of the
nonfulfillment or failure of any condition to BB&T's obligations
referred to in Section 8(a) or Section 9), BB&T shall pay
directly all reasonable fees and expenses incurred by Advisors
in connection with such transactions, including without
limitation legal, accounting and filing fees.
(d) In the event the transactions contemplated by this
Agreement are not consummated for any reason other than (i) BB&T
or Advisors being either unwilling or unable to go forward or
(ii) the nonfulfillment or failure of any condition to Advisors
or BB&T's obligations referred to in Section 8(a), Section 9 or
Section 10 of this Agreement, then each of Advisors and BB&T
shall bear the expenses it has actually incurred in connection
with such transactions.
(e) Notwithstanding any other provisions of this
Agreement, if for any reason the transactions contemplated by
this Agreement are not consummated, no party shall be liable to
the other party for any damages resulting therefrom, including
without limitation consequential damages, except as specifically
set forth above.
6. Permitted Assets. BB&T and Advisors agree to review
the assets of the Sterling Fund to ensure that at any time prior
to the Exchange Date the assets of the Sterling Fund do not
include any assets that the BB&T Fund is not permitted, or
reasonably believes to be unsuitable for it, to acquire,
including without limitation any security that, prior to its
acquisition by the Sterling Fund, is unsuitable for the BB&T
Fund to acquire.
7. Exchange Date. Delivery of the assets of the Sterling
Fund to be transferred, assumption of the liabilities of the
Sterling Fund to be assumed, and the delivery of BB&T Fund
Shares to be issued shall be made on August 21, 2006 at 10:00
a.m. or at such other times and dates agreed to by Advisors and
BB&T, the date and time upon which such delivery is to take
place being referred to herein as the "Exchange Date."
8. Special Meeting of Shareholders; Dissolution. (a)
Advisors agrees to call a special meeting of the shareholders of
the Sterling Fund as soon as is practicable after the effective
date of the Registration Statement for the purpose of
considering the sale of all of the assets of the Sterling Fund
to and the assumption of all of the liabilities of the Sterling
Fund by the BB&T Fund as herein provided, approving this
Agreement, and authorizing the liquidation and dissolution of
the Sterling Fund, and, except as set forth in Section 13, it
shall be a condition to the obligations of each of the parties
hereto that the holders of the Shares of the Sterling Fund shall
have approved this Agreement and the transactions contemplated
herein in the manner required by law and Advisors' Declaration
of Trust and Bylaws at such a meeting on or before the Valuation
Time.
(b) Advisors and the Sterling Fund agree that the
liquidation of the Sterling Fund will be effected in the manner
provided in Advisors' Declaration of Trust and Bylaws in
accordance with applicable law, that it will not make any
distributions of any BB&T Fund Shares to the shareholders of the
Sterling Fund without first paying or adequately providing for
the payment of all of the Sterling Fund's known debts,
obligations and liabilities.
(c) Each of BB&T and Advisors will cooperate with the
other, and each will furnish to the other the information
relating to itself required by the 1933 Act, the 1934 Act and
the 1940 Act and the rules and regulations thereunder to be set
forth in the Registration Statement, including the Prospectus
and the Proxy Statement.
9. Conditions to BB&T's Obligations. The obligations of
BB&T and the BB&T Fund hereunder shall be subject to the
following conditions:
(a) That this Agreement shall have been approved and the
transactions contemplated hereby, including the liquidation of
the Sterling Fund, shall have been approved by the shareholders
of the Sterling Fund in the manner required by law.
(b) Advisors shall have furnished to BB&T a statement of
the Sterling Fund's assets and liabilities, with values
determined as provided in Section 4 of this Agreement, together
with a list of Investments with their respective tax costs, all
as of the Valuation Time, certified on Advisors' behalf by its
President (or any Vice President) and Chief Financial Officer,
and a certificate of both such officers, dated the Exchange
Date, to the effect that as of the Valuation Time and as of the
Exchange Date there has been no material adverse change in the
financial position of the Sterling Fund since October 31, 2005,
other than changes in the Investments since that date or changes
in the market value of the Investments, or changes due to net
redemptions of Shares of the Sterling Fund, dividends paid or
losses from operations.
(c) As of the Valuation Time and as of the Exchange Date,
all representations and warranties of Advisors and the Sterling
Fund made in this Agreement are true and correct in all material
respects as if made at and as of such dates, Advisors and the
Sterling Fund have complied with all the agreements and
satisfied all the conditions on their part to be performed or
satisfied at or prior to each of such dates, and Advisors shall
have furnished to BB&T a statement, dated the Exchange Date,
signed by Advisors' President (or any Vice President) and
Treasurer certifying those facts as of such dates.
(d) Advisors shall have delivered to BB&T a letter from
KPMG LLP dated the Exchange Date stating that such firm reviewed
the federal and state income tax returns of the Sterling Fund
for the year ended October 31, 2005 and that, in the course of
such review, nothing came to their attention which caused them
to believe that such returns did not properly reflect, in all
material respects, the federal and state income taxes of the
Sterling Fund for the periods covered thereby, or that the
Sterling Fund would not qualify as a regulated investment
company for federal income tax purposes.
(e) There shall not be any material litigation pending
with respect to the matters contemplated by this Agreement.
(f) BB&T shall have received an opinion of Xxxxxx, Xxxxx &
Xxxxxxx LLP, in form reasonably satisfactory to BB&T and dated
the Exchange Date, to the effect that (i) Advisors is a business
trust validly existing in conformity with the laws of the
Commonwealth of Massachusetts and has the power to own all of
its properties and assets and to carry on its business as
presently conducted, and the Sterling Fund is a separate series
thereof duly constituted in accordance with the applicable
provisions of the 1940 Act and the Declaration of Trust and
Bylaws of Advisors; (ii) this Agreement has been duly
authorized, executed, and delivered by Advisors on behalf of the
Sterling Fund and, assuming that the Registration Statement, the
Prospectus and the Proxy Statement comply with the 1933 Act, the
1934 Act and the 1940 Act and assuming due authorization,
execution and delivery of this Agreement by BB&T, is a valid and
binding obligation of Advisors with respect to the Sterling
Fund, enforceable against the Sterling Fund in accordance with
its terms, except as the same may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance and similar laws
relating to or affecting creditors' rights generally and court
decisions with respect thereto; (iii) Advisors has power to
sell, assign, convey, transfer and deliver the Investments and
other assets contemplated hereby and, upon consummation of the
transactions contemplated hereby in accordance with the terms of
this Agreement, Advisors and the Sterling Fund will have duly
sold, assigned, conveyed, transferred and delivered such
Investments and other assets to BB&T; (iv) the execution and
delivery of this Agreement did not, and the consummation of the
transactions contemplated hereby will not, violate Advisors'
Declaration of Trust and Bylaws or any provision of an agreement
known to such counsel to which Advisors, with respect to the
Sterling Fund, is a party or by which it is bound or, to the
knowledge of such counsel, result in the acceleration of any
obligations or the imposition of any penalty under any
agreement, judgment, or decree to which the Sterling Fund is a
party or by which it is bound; (v) to such counsel's knowledge,
no consent, approval, authorization or order of any court or
governmental authority is required for the consummation by
Advisors on behalf of the Sterling Fund of the transactions
contemplated hereby, except such as have been obtained under the
1933 Act, the 1934 Act and the 1940 Act and such as may be
required under state securities or blue sky laws and the H-S-R
Act; (vi) to such counsel's knowledge, there is no legal,
administrative or governmental proceeding, investigation, order,
decree or judgment of any court or governmental body, only
insofar as they relate to the Sterling Fund or its assets or
properties, pending, threatened or otherwise existing on or
before the effective date of the Registration Statement or the
Exchange Date that is required to be described in the
Registration Statement or to be filed as an exhibit to the
Registration Statement that is not described or filed as
required or that materially and adversely affect the Sterling
Fund's business; (vii) Advisors is registered as an investment
company under the 1940 Act, and, to the knowledge of such
counsel, its registration with the Commission as an investment
company under the 1940 Act is in full force and effect; and
(viii) to the knowledge of such counsel, except as has been
disclosed in writing to the BB&T Fund, no litigation or
administrative proceeding or investigation of or before any
court or governmental body is presently pending or threatened as
to the Sterling Fund or any of its properties or assets or any
person whom the Sterling Fund may be obligated to indemnify in
connection with such litigation, proceeding or investigation,
and the Sterling Fund is not a party to or subject to the
provisions of any order, decree or judgment of any court or
governmental body, which materially and adversely affects its
business or its ability to consummate the transactions
contemplated hereby.
(g) BB&T shall have received an opinion of Ropes & Xxxx
LLP, counsel to BB&T, addressed to BB&T and the BB&T Fund, in
form reasonably satisfactory to BB&T and dated the Exchange Date
(which opinion will be based upon certain factual
representations and subject to certain qualifications), to the
effect that, on the basis of the existing provisions of the
Code, Treasury regulations, current administrative rules and
court decisions, generally, for federal income tax purposes:
(i) the transfer of all of the assets of the Sterling Fund to
the BB&T Fund in exchange solely for the BB&T Fund Shares and
the assumption by the BB&T Fund of the liabilities of the
Sterling Fund, followed by the distribution by the Sterling Fund
of the BB&T Fund Shares to the Sterling Fund shareholders in
complete liquidation of the Sterling Fund, will constitute a
"reorganization" as defined in Section 368(a) of the Code, and
the Sterling Fund and the BB&T Fund will each be "a party to a
reorganization" within the meaning of Section 368(b) of the
Code; (ii) no gain or loss will be recognized by the BB&T Fund
upon the receipt of the assets of the Sterling Fund in exchange
for BB&T Fund Shares and the assumption by the BB&T Fund of the
liabilities of the Sterling Fund; (iii) the basis in the hands
of the BB&T Fund of the assets of the Sterling Fund transferred
to the BB&T Fund will be the same as the basis of such assets in
the hands of the Sterling Fund immediately prior to the
transfer; (iv) the holding periods of the assets of the Sterling
Fund in the hands of the BB&T Fund will include the periods
during which such assets were held by the Sterling Fund; (v) no
gain or loss will be recognized by the Sterling Fund upon the
transfer of the Sterling Fund's assets to the BB&T Fund in
exchange for BB&T Fund Shares and the assumption by the BB&T
Fund of the liabilities of the Sterling Fund, or upon the
distribution of BB&T Fund Shares by the Sterling Fund to its
shareholders in liquidation pursuant to this Agreement; (vi) no
gain or loss will be recognized by the Sterling Fund
shareholders upon the exchange of their Sterling Fund Shares for
BB&T Fund Shares; (vii) the aggregate basis of the BB&T Fund
Shares a Sterling Fund shareholder receives in connection with
the transactions contemplated by this Agreement will be the same
as the aggregate basis of his or her Sterling Fund Shares
exchanged therefor; (viii) a Sterling Fund shareholder's holding
period for his or her BB&T Fund Shares will be determined by
including the period for which he or she held the Sterling Fund
Shares exchanged therefor, provided that he or she held such
Sterling Fund Shares as capital assets; and (ix) the BB&T Fund
will succeed to and take into account the items of the Sterling
Fund described in Section 381(c) of the Code.
(h) Subject to the parties' compliance with Section 6
hereof, the assets of the Sterling Fund to be acquired by the
BB&T Fund will include no assets which the BB&T Fund, by reason
of limitations contained in its Declaration of Trust or of
investment restrictions disclosed in the Prospectus in effect on
the Exchange Date, may not properly acquire. BB&T shall not
change the BB&T Declaration of Trust and the Prospectus so as to
restrict permitted investments for the BB&T Fund except as
required by the Commission or any state regulatory authority.
(i) The Registration Statement shall have become effective
under the 1933 Act and applicable Blue Sky provisions, and no
stop order suspending such effectiveness shall have been
instituted or, to the knowledge of BB&T, contemplated by the
Commission and or any state regulatory authority.
(j) All proceedings taken by Advisors in connection with
the transactions contemplated by this Agreement and all
documents incidental thereto reasonably shall be satisfactory in
form and substance to BB&T.
(k) Advisors shall have furnished to BB&T a certificate,
signed by the President (or any Vice President) and the Chief
Financial Officer of Advisors, as to the tax cost to Advisors of
the securities delivered to BB&T pursuant to this Agreement,
together with any such other evidence as to such tax cost as
BB&T may reasonably request.
(l) The Sterling Fund's custodian shall have delivered to
BB&T a certificate identifying all of the assets of the Sterling
Fund held by such custodian as of the Valuation Time.
(m) The Sterling Fund's transfer agent shall have provided
to BB&T's transfer agent (i) the originals or true copies of all
of the records of the Sterling Fund in the possession of such
Sterling transfer agent as of the Exchange Date, (ii) a record
specifying the number of Shares of the Sterling Fund outstanding
as of the Valuation Time and (iii) a record specifying the name
and address of each holder of record of any such Shares of the
Sterling Fund and the number of Shares held of record by each
such shareholder as of the Valuation Time. Sterling's transfer
agent shall also have provided BB&T with a certificate
confirming that the acts specified in the preceding sentence
have been taken and that the information so supplied is complete
and accurate to the best knowledge of the transfer agent.
(n) All of the issued and outstanding Shares of the
Sterling Fund shall have been offered for sale and sold in
conformity with all applicable federal or state securities or
blue sky laws and, to the extent that any audit of the records
of Advisors or the Sterling Fund or its transfer agent by BB&T
or its agents shall have revealed otherwise, either (i) Advisors
and the Sterling Fund shall have taken all actions that in the
reasonable opinion of BB&T are necessary to remedy any prior
failure on the part of Advisors to have offered for sale and
sold such Sterling Fund Shares in conformity with such laws or
(ii) Advisors shall have furnished (or caused to be furnished)
surety, or deposited (or caused to be deposited) assets in
escrow, for the benefit of BB&T in amounts sufficient and upon
terms satisfactory, in the opinion of BB&T or its counsel, to
indemnify BB&T against any expense, loss, claim, damage or
liability whatsoever that may be asserted or threatened by
reason of such failure on the part of Advisors to have offered
and sold such Sterling Fund Shares in conformity with such laws.
(o) BB&T shall have received from KPMG LLP a letter
addressed to BB&T dated as of the Exchange Date reasonably
satisfactory in form and substance to BB&T and Advisors to the
effect that, on the basis of limited procedures agreed upon by
BB&T and Advisors and described in such letter (but not an
examination in accordance with generally accepted auditing
standards), as of the Valuation Time the value of the assets of
the Sterling Fund to be exchanged for the Shares have been
determined in accordance with the valuation procedures for the
BB&T Fund as set forth in the Prospectus and Statement of
Additional Information.
(p) Advisors shall have duly executed and delivered to
BB&T bills of sale, assignments, certificates and other
instruments of transfer ("Transfer Documents") as BB&T may deem
necessary or desirable to transfer all of Advisors' and the
Sterling Fund's entire right, title and interest in and to the
Investments and all other assets of the Sterling Fund.
10. Conditions to Advisors' Obligations. The obligations
of Advisors and the Sterling Fund hereunder shall be subject to
the following conditions:
(a) This Agreement shall have been adopted and the
transactions contemplated hereby, including the liquidation of
the Sterling Fund, shall have been approved by the shareholders
of the Sterling Fund in the manner required by law.
(b) BB&T shall have executed and delivered to Advisors an
Assumption of Liabilities dated as of the Exchange Date pursuant
to which the BB&T Fund will assume all of the liabilities of the
Sterling Fund existing at the Valuation Time in connection with
the transactions contemplated by this Agreement.
(c) As of the Valuation Time and as of the Exchange Date,
all representations and warranties of BB&T and the BB&T Fund
made in this Agreement are true and correct in all material
respects as if made at and as of such dates, BB&T and the BB&T
Fund has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied at or
prior to each of such dates, and BB&T shall have furnished to
Advisors a statement, dated the Exchange Date, signed by BB&T's
President (or any Vice President) and Treasurer certifying those
facts as of such dates.
(d) There shall not be any material litigation pending
with respect to the matters contemplated by this Agreement.
(e) Advisors shall have received an opinion of Ropes &
Xxxx LLP, in form reasonably satisfactory to Advisors and dated
the Exchange Date, to the effect that (i) BB&T is a business
trust validly existing in conformity with the laws of The
Commonwealth of Massachusetts and has the power to own all of
its properties and assets and to carry on its business as
presently conducted, and the BB&T Fund is a separate series
thereof duly constituted in accordance with the applicable
provisions of the 1940 Act and the Declaration of Trust and
Bylaws of BB&T; (ii) the BB&T Fund Shares to be delivered to
Advisors as provided for by this Agreement are duly authorized
and upon such delivery will be validly issued and will be fully
paid and nonassessable by BB&T and no shareholder of BB&T has
any preemptive right to subscription or purchase in respect
thereof; (iii) this Agreement has been duly authorized, executed
and delivered by BB&T and, assuming that the Prospectus, the
Registration Statement and the Proxy Statement comply with the
1933 Act, the 1934 Act and the 1940 Act and assuming due
authorization, execution and delivery of this Agreement by
Advisors, is a valid and binding obligation of BB&T; (iv) the
execution and delivery of this Agreement did not, and the
consummation of the transactions contemplated hereby will not,
violate BB&T's Declaration of Trust, as amended, or Bylaws, or
any provision of any agreement known to such counsel to which
BB&T or the BB&T Fund is a party or by which it is bound, it
being understood that with respect to investment restrictions as
contained in BB&T's Declaration of Trust, as amended, Bylaws or
the Prospectus, such counsel may rely upon a certificate of an
officer of BB&T whose responsibility it is to advise BB&T with
respect to such matters; (v) no consent, approval, authorization
or order of any court or governmental authority is required for
the consummation by BB&T or the BB&T Fund of the transactions
contemplated herein, except such as have been obtained under the
1933 Act, the 1934 Act and the 1940 Act and such as may be
required under state securities or blue sky laws and the H-S-R
Act; (vi) BB&T is registered as an investment company under the
1940 Act, and, to the knowledge of such counsel, its
registration with the Commission as an investment company under
the 1940 Act is in full force and effect; and (vii) to the
knowledge of such counsel, except as has been disclosed in
writing to the Sterling Fund, no litigation or administrative
proceeding or investigation of or before any court or
governmental body is presently pending or threatened as to the
BB&T Fund or any of its properties or assets or any person whom
the BB&T Fund may be obligated to indemnify in connection with
such litigation, proceeding or investigation, and the BB&T Fund
is not a party to or subject to the provisions of any order,
decree or judgment of any court or governmental body, which
materially and adversely affects its business or its ability to
consummate the transactions contemplated hereby.
(f) Advisors shall have received an opinion of Ropes &
Xxxx LLP addressed to Advisors and the Sterling Fund, in a form
reasonably satisfactory to Advisors and dated the Exchange Date
(which opinion will be based upon certain factual
representations and subject to certain qualifications), to the
effect that, on the basis of the existing provisions of the
Code, Treasury regulations, current administrative rules and
court decisions, generally, for federal income tax purposes:
(i) the transfer of all of the assets of the Sterling Fund to
the BB&T Fund in exchange solely for the BB&T Fund Shares and
the assumption by the BB&T Fund of the liabilities of the
Sterling Fund, followed by the distribution by the Sterling Fund
of the BB&T Fund Shares to the Sterling Fund shareholders in
complete liquidation of the Sterling Fund, will constitute a
"reorganization" as defined in Section 368(a) of the Code, and
the Sterling Fund and the BB&T Fund will each be "a party to a
reorganization" within the meaning of Section 368(b) of the
Code; (ii) no gain or loss will be recognized by the BB&T Fund
upon the receipt of the assets of the Sterling Fund in exchange
for BB&T Fund Shares and the assumption by the BB&T Fund of the
liabilities of the Sterling Fund; (iii) the basis in the hands
of the BB&T Fund of the assets of the Sterling Fund transferred
to the BB&T Fund will be the same as the basis of such assets in
the hands of the Sterling Fund immediately prior to the
transfer; (iv) the holding periods of the assets of the Sterling
Fund in the hands of the BB&T Fund will include the periods
during which such assets were held by the Sterling Fund; (v) no
gain or loss will be recognized by the Sterling Fund upon the
transfer of the Sterling Fund's assets to the BB&T Fund in
exchange for BB&T Fund Shares and the assumption by the BB&T
Fund of the liabilities of the Sterling Fund or upon the
distribution of BB&T Fund Shares by the Sterling Fund to its
shareholders in liquidation pursuant to this Agreement; (vi) no
gain or loss will be recognized by the Sterling Fund
shareholders upon the exchange of their Sterling Fund Shares for
BB&T Fund Shares; (vii) the aggregate basis of the BB&T Fund
Shares a Sterling Fund shareholder receives in connection with
the transactions contemplated by this Agreement will be the same
as the aggregate basis of his or her Sterling Fund Shares
exchanged therefor; (viii) a Sterling Fund shareholder's holding
period for his or her BB&T Fund Shares will be determined by
including the period for which he or she held the Sterling Fund
Shares exchanged therefor, provided that he or she held such
Sterling Fund Shares as capital assets; and (ix) the BB&T Fund
will succeed to and take into account the items of the Sterling
Fund described in Section 381(c) of the Code.
(g) All proceedings taken by BB&T in connection with the
transactions contemplated by this Agreement and all documents
incidental thereto shall be reasonably satisfactory in form and
substance to Advisors.
(h) The Registration Statement shall have become effective
under the 1933 Act and applicable Blue Sky provisions, and no
stop order suspending such effectiveness shall have been
instituted or, to the knowledge of BB&T, contemplated by the
Commission or any state regulatory authority.
(i) At the Exchange Date, the Sterling Fund will have sold
such of its assets, if any, if informed by BB&T in writing that
such sale is necessary to assure that, after giving effect to
the acquisition of the assets pursuant to this Agreement, the
BB&T Fund designated as a "diversified company" will remain a
"diversified company" within the meaning of Section 5(b)(1) of
the 1940 Act and in compliance with such other mandatory
investment restrictions as are set forth in the BB&T Prospectus
previously furnished to Advisors.
(j) All fees and expenses, as specified in Section 5
hereof, shall be paid in full by Sterling Capital Management LLC.
11. Indemnification. (a) Advisors will indemnify and
hold harmless BB&T, its trustees and its officers (for purposes
of this subsection, the "Indemnified Parties") against any and
all expenses, losses, claims, damages and liabilities at any
time imposed upon or reasonably incurred by any one or more of
the Indemnified Parties in connection with, arising out of, or
resulting from any claim, action, suit or proceeding in which
any one or more of the Indemnified Parties may be involved or
with which any one or more of the Indemnified Parties may be
threatened by reason of any untrue statement or alleged untrue
statement of a material fact relating to Advisors or the
Sterling Fund contained in the Registration Statement, the
Prospectus or the Proxy Statement or any amendment or supplement
to any of the foregoing, or arising out of or based upon the
omission or alleged omission to state in any of the foregoing a
material fact relating to Advisors or the Sterling Fund required
to be stated therein or necessary to make the statements
relating to Advisors or the Sterling Fund therein not
misleading, including, without limitation, any amounts paid by
any one or more of the Indemnified Parties in a reasonable
compromise or settlement of any such claim, action, suit or
proceeding, or threatened claim, action, suit or proceeding made
with the prior consent of Advisors. The Indemnified Parties
will notify Advisors in writing within ten days after the
receipt by any one or more of the Indemnified Parties of any
notice of legal process or any suit brought against or claim
made against such Indemnified Party as to any matters covered by
this Section 11(a). Advisors shall be entitled to participate
at its own expense in the defense of any claim, action, suit or
proceeding covered by this Section 11(a), or, if it so elects,
to assume at its expense by counsel satisfactory to the
Indemnified Parties the defense of any such claim, action, suit
or proceeding, and if Advisors elects to assume such defense,
the Indemnified Parties shall be entitled to participate in the
defense of any such claim, action, suit or proceeding at their
expense. Advisors' and the Sterling Fund's obligation under
this Section 11(a) to indemnify and hold harmless the
Indemnified Parties shall constitute a guarantee of payment so
that the Sterling Fund will pay in the first instance any
expenses, losses, claims, damages and liabilities required to be
paid by them under this Section 11(a) without the necessity of
the Indemnified Parties' first paying the same.
(b) BB&T will indemnify and hold harmless Advisors, its
directors and its officers (for purposes of this subsection, the
"Indemnified Parties") against any and all expenses, losses,
claims, damages and liabilities at any time imposed upon or
reasonably incurred by any one or more of the Indemnified
Parties in connection with, arising out of, or resulting from
any claim, action, suit or proceeding in which any one or more
of the Indemnified Parties may be involved or with which any one
or more of the Indemnified Parties may be threatened by reason
of any untrue statement or alleged untrue statement of a
material fact relating to BB&T or the BB&T Fund contained in the
Registration Statement, the Prospectus or the Proxy Statement,
or any amendment or supplement to any of the foregoing, or
arising out of or based upon the omission or alleged omission to
state in any of the foregoing a material fact relating to BB&T
or the BB&T Fund required to be stated therein or necessary to
make the statements relating to BB&T or the BB&T Fund therein
not misleading, including, without limitation, any amounts paid
by any one or more of the Indemnified Parties in a reasonable
compromise or settlement of any such claim, action, suit or
proceeding, or threatened claim, action, suit or proceeding made
with the prior consent of BB&T. The Indemnified Parties will
notify BB&T in writing within ten days after the receipt by any
one or more of the Indemnified Parties of any notice of legal
process or any suit brought against or claim made against such
Indemnified Party as to any matters covered by this Section
11(b). BB&T shall be entitled to participate at its own expense
in the defense of any claim, action, suit or proceeding covered
by this Section 11(b), or, if it so elects, to assume at its
expense by counsel satisfactory to the Indemnified Parties the
defense of any such claim, action, suit or proceeding, and, if
BB&T elects to assume such defense, the Indemnified Parties
shall be entitled to participate in the defense of any such
claim, action, suit or proceeding at their own expense. The
BB&T Fund's obligation under this Section 11(b) to indemnify and
hold harmless the Indemnified Parties shall constitute a
guarantee of payment so that the BB&T Fund will pay in the first
instance any expenses, losses, claims, damages and liabilities
required to be paid by them under this Section 11(b) without the
necessity of the Indemnified Parties' first paying the same.
12. No Broker, etc. Each of BB&T and Advisors represents
that there is no person who has dealt with it who by reason of
such dealings is entitled to any broker's or finder's or other
similar fee or commission arising out of the transactions
contemplated by this Agreement.
13. Termination. BB&T and Advisors may, by mutual consent
of their respective trustees, terminate this Agreement, and BB&T
or Advisors, after consultation with counsel and by consent of
their respective trustees and directors or an officer authorized
by such trustees or directors, may waive any condition to their
respective obligations hereunder. If the transactions
contemplated by this Agreement have not been substantially
completed by December 31, 2006, this Agreement shall
automatically terminate on that date unless a later date is
agreed to by BB&T and Advisors.
14. Covenants, etc. Deemed Material. All covenants,
agreements, representations and warranties made under this
Agreement and any certificates delivered pursuant to this
Agreement shall be deemed to have been material and relied upon
by each of the parties, notwithstanding any investigation made
by them or on their behalf.
15. Sole Agreement; Amendments. This Agreement supersedes
all previous correspondence and oral communications between the
parties regarding the subject matter hereof, constitutes the
only understanding with respect to such subject matter, may not
be changed except by a letter of agreement signed by each party
hereto, and shall be construed in accordance with and governed
by the laws of the Commonwealth of Massachusetts.
16. BB&T Agreement and Declaration of Trust. BB&T is a
business trust organized under Massachusetts law and under a
Declaration of Trust, to which reference is hereby made and a
copy of which is on file at the office of the Secretary of The
Commonwealth of Massachusetts and elsewhere as required by law,
and to any and all amendments thereto so filed or hereafter
filed. The obligations of BB&T or BB&T Fund entered into in the
name or on behalf thereof by any of the Trustees, officers,
employees or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees,
officers, employees, agents or shareholders of BB&T personally,
but bind only the assets of BB&T and all persons dealing with
any series or funds of BB&T, such as the BB&T Fund, with respect
to all obligations contained in this Agreement, must look solely
to the assets of BB&T belonging to such series or fund for the
enforcement of any claims against BB&T.
17. Advisors Agreement and Declaration of Trust. Advisors
is a business trust organized under Massachusetts law and under
a Declaration of Trust, to which reference is hereby made and a
copy of which is on file at the office of the Secretary of The
Commonwealth of Massachusetts and elsewhere as required by law,
and to any and all amendments thereto so filed or hereafter
filed. The obligations of Advisors or Sterling Fund entered
into in the name or on behalf thereof by any of the Trustees,
officers, employees or agents are made not individually, but in
such capacities, and are not binding upon any of the Trustees,
officers, employees, agents or shareholders of Advisors
personally, but bind only the assets of Advisors and all persons
dealing with any series or funds of Advisors, such as the
Sterling Fund, with respect to all obligations contained in this
Agreement, must look solely to the assets of Advisors belonging
to such series or fund for the enforcement of any claims against
Advisors.
[Signature Page Follows]
This Agreement may be executed in any number of counter-
parts, each of which, when executed and delivered, shall be
deemed to be an original.
THE ADVISORS' INNER CIRCLE FUND,
on behalf of the Sterling Capital Small Cap Value Fund
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Secretary
BB&T FUNDS,
on behalf of the Sterling Capital Small Cap Value Fund
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
