those related to the Adviser's employees), fire, mechanical
breakdowns, flood or catastrophe, acts of God, insurrection, war,
riots or failure of the mails, transportation, communication or power
supply.
With respect to indemnification of an adviser to the Trust, the
Investment Advisory Agreement between the Trust and Absolute
Investment Advisers, LLC, LLC, MAI Investment Advisers, LLC, and UCM
Partners, L.P. includes language similar to the following:
(a) The Trust shall expect of the Adviser, and the Adviser will give
the Trust the benefit of, the Adviser's best judgment and efforts in
rendering its services to the Trust. The Adviser shall not be liable
hereunder for any mistake of judgment or mistake of law for any loss
arising out of any investment or for any act or omission taken or in
any event whatsoever with respect to the Trust, the Fund or any of
the Fund's shareholders in the absence of bad faith, willful
misfeasance or gross negligence in the performance of the Adviser's
duties or obligations and under this Agreement.
(b) Adviser shall not be liable for the errors of other service
providers to the Trust, including the errors of pricing, services,
administrator, fund accountant, custodian or transfer agent to the
Trust. The Adviser shall not be liable to the Trust for any action
take or failure to act in good faith reliance upon: (i) information,
instructions or requests, whether oral or written, with respect to
the Fund made to the Adviser by a duly authorized officer of the
Trust; (ii) the advice of counsel to the Trust; and (iii) any written
instruction or certified copy of any resolution of the Board or any
agent of the Board.
(c) The Adviser shall not be responsible or liable for any failure
or delay in performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances
beyond its reasonable control including, without limitation, acts of
civil or military authority, national emergencies, labor difficulties
(other than those related to the Adviser's employees), fire,
mechanical breakdowns, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation,
communication or power supply.
With respect to indemnification of an adviser to the Trust, the
Investment Advisory Agreement between the Trust and Auxier Asset
Management, LLC, H.M. Payson & Co. and King Investment Advisers, Inc.
includes language similar to the following:
The Adviser may rely on information reasonably believed by the
Adviser to be accurate and reliable. Except as may otherwise be
required by the 1940 Act or the rules thereunder, neither the Adviser
nor its shareholders, members, officers, directors, employees,
agents, control persons or affiliates of any thereof shall be subject
to any liability for, or any damages, expenses or losses incurred by
the Trust in connection with, any error of judgment, mistake of law,
any act or omission connected with or arising out of any services
rendered under, or payments made pursuant to, this Agreement or any
other matter to which this Agreement relates, except by reason of
willful misfeasance, bad faith or gross negligence on the part of any
such persons in the performance of the Adviser's duties under this
Agreement, or by reason of reckless disregard by any of such persons
of the Adviser's obligations and duties under this Agreement.
With respect to indemnification of the underwriter of the Trust,
Section 8 of the Distribution Agreement provides:
(a) The Trust will indemnify, defend and hold the Distributor, its
employees, agents, directors and officers and any person who controls
the Distributor within the meaning of section 15 of the Securities
Act or section 20 of the 1934 Act ("Distributor Indemnitees") free
and harmless from and against any and all claims, demands, actions,
suits, judgments, liabilities, losses, damages, costs, charges,
reasonable counsel fees and other expenses of every nature and
character (including the cost of investigating or defending such
claims, demands, actions, suits or liabilities and any reasonable
counsel fees incurred in connection therewith) which any Distributor
Indemnitee may incur, under the Securities Act, or under common law
or otherwise, arising out of or based upon (i) the bad faith, willful
misfeasance or gross negligence of the Trust in connection with the
subject matter of this Agreement; (ii) any material breach by the
Trust of its representations an warranties under this Agreement;
(iii) any alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectuses or arising out of or
based upon any alleged omission to state a material fact required to
be stated in any one thereof or necessary to make the statements in
any one thereof not misleading, unless such statement or omission was
made in reliance upon, and in conformity with, information furnished
in writing to the Trust in connection with the preparation of the
Registration Statement or exhibits to the Registration Statement by
or on behalf of the Distributor ("Distributor Claims").
After receipt of the Distributor's notice of termination under
Section 13(e), the Trust shall indemnify and hold each Distributor
Indemnitee free and harmless from and against any Distributor Claim;
provided, that the term Distributor Claim for purposes of this
sentence shall mean any Distributor Claim related to the matters for
which the Distributor has requested amendment to the Registration
Statement and for which the Trust has not filed a