Exhibit (h)(v) under Form N-1A
Exhibit (10) under 601/Reg. S-K
AMENDED AND RESTATED TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of the 1st day of July, 2000, is amended and restated
as of the 4th day of August, 2003, severally and not jointly, among BBH Fund,
Inc., a Maryland corporation, BBH Trust, a Massachusetts trust, BBH Common
Settlement Fund, Inc., a Maryland corporation, and BBH Common Settlement Fund
II, Inc., a Maryland corporation, each with their principal office and place
of business at 00 Xxxxx Xxxxxx, Xxxxxx Xxxxxxxxxxxxx 00000 (each, an
"Investment Company"), and Forum Shareholder Services, LLC, a Delaware
limited liability company with its principal office and place of business at
Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 ("Forum").
WHEREAS, each Investment Company is registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company and may issue its shares (the "Shares"), in
separate series and classes; and
WHEREAS, each Investment Company offers shares in various series
(each such series, together with all other series subsequently established by
an Investment Company and made subject to this Agreement in accordance with
Section 12, being herein referred to as a "Fund," and collectively as the
"Funds") and an Investment Company may in the future offer shares of various
classes of each Fund (each such class together with all other classes
subsequently established by an Investment Company in a Fund being herein
referred to as a "Class," and collectively as the "Classes");
WHEREAS, each Investment Company desires that Forum perform as the
transfer agent and dividend disbursing agent for each Fund and Forum is
willing to provide these services on the terms and conditions set forth in
this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants
and agreements contained herein, each Investment Company and Forum hereby
agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) Each Investment Company, on behalf of the Funds, hereby appoints
Forum to act as, and Forum agrees to act as, (i) transfer agent for the
authorized and issued shares of each Investment Company representing
interests in each of the respective Funds and Classes thereof ("Shares"),
(ii) dividend disbursing agent and (iii) agent in connection with any
accumulation, open-account or similar plans provided to the registered owners
of shares of any of the Funds ("Shareholders") and set out in the currently
effective prospectuses and statements of additional information (collectively
"prospectus") of the applicable Fund, including, without limitation, any
periodic investment plan or periodic withdrawal program.
(b) In connection therewith, each Investment Company has
delivered to Forum copies of (i) the Investment Company's Articles of
Incorporation/Declaration of Trust and Bylaws (collectively, as amended from
time to time, "Organic Documents"), (ii) the Investment Company's
Registration Statement and all amendments thereto filed with the U.S.
Securities and Exchange Commission ("SEC") pursuant to the Securities Act of
1933, as amended (the "Securities Act"), or the 1940 Act (the "Registration
Statement"), (iii) the Investment Company's current prospectus, and (iv) each
current plan of distribution or similar document adopted by the Investment
Company under Rule 12b-1 under the 1940 Act ("Plan") and each current
shareholder service plan or similar document adopted by the Investment
Company ("Service Plan") and shall promptly furnish Forum with all amendments
of or supplements to the foregoing. The Investment Company shall deliver to
Forum a certified copy of the resolution of the Board of Trustees of BBH
Trust; and the Board of Directors of BBH Fund, Inc, BBH Common Settlement
Fund, Inc. and BBH Common Settlement Fund II, Inc. (collectively referred to
as the "Board") appointing Forum and authorizing the execution and delivery
of this Agreement.
SECTION 2. DUTIES OF FORUM
(a) Forum agrees that in accordance with procedures established from
time to time by agreement between each Investment Company on behalf of each
of the Funds, as applicable, and Forum, Forum will perform the following
services:
(i) provide the services of a transfer agent, dividend disbursing
agent and, as relevant, agent in connection with accumulation,
open-account or similar plans (including without limitation any
periodic investment plan or periodic withdrawal program) that are
customary for open-end management investment companies including: (A)
maintaining all Shareholder accounts, (B) preparing Shareholder meeting
lists, (C) mailing proxies and related materials to Shareholders, (D)
mailing Shareholder reports and prospectuses to current Shareholders,
(E) withholding taxes on U.S. resident and non-resident alien accounts,
(F) preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required by federal authorities with respect to
distributions for Shareholders, (G) preparing and mailing confirmation
forms and statements of account to Shareholders for all purchases and
redemptions of Shares and other confirmable transactions in Shareholder
accounts, (H) preparing and mailing activity statements for
Shareholders, and (I) providing Shareholder account information;
(ii) receive for acceptance orders for the purchase of Shares and
promptly deliver payment and appropriate documentation therefor to the
custodian of the applicable Fund (the "Custodian") or, in the case of
Fund's operating in a master-feeder or fund of funds structure, to the
transfer agent or interestholder recordkeeper for the master portfolios
in which the Fund invests;
(iii) pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(iv) receive for acceptance redemption requests and deliver the
appropriate documentation therefor to the Custodian or, in the case of
Fund's operating in a master-feeder structure, to the transfer agent or
interestholder recordkeeper for the master fund in which the Fund
invests;
(v) as and when it receives monies paid to it by the Custodian with
respect to any redemption, pay the redemption proceeds as required by
the prospectus pursuant to which the redeemed Shares were offered and
as instructed by the redeeming Shareholders;
(vi) effect transfers of Shares upon receipt of appropriate
instructions from Shareholders;
(vii) prepare and transmit to Shareholders (or credit the appropriate
Shareholder accounts) payments for all distributions declared by the
Trust with respect to Shares;
(viii) issue share certificates and replacement share certificates
for those share certificates alleged to have been lost, stolen, or
destroyed upon receipt by Forum of indemnification satisfactory to
Forum and protecting Forum and the Investment Company and, at the
option of Forum, issue replacement certificates in place of mutilated
share certificates upon presentation thereof without requiring
indemnification;
(ix) receive from Shareholders or debit Shareholder accounts for sales
commissions, including contingent deferred, deferred and other sales
charges, and service fees (i.e., wire redemption charges) and prepare
and transmit payments to underwriters, selected dealers and others for
commissions and service fees received;
(x) track shareholder accounts by financial intermediary source and
otherwise as reasonably requested by the Investment Company and provide
periodic reporting to the Investment Company or its administrator or
other agent;
(xi) maintain records of account for and provide reports and
statements to the Investment Company and Shareholders as to the
foregoing;
(xii) record the issuance of Shares of the Investment Company and
maintain pursuant to Rule 17Ad-10(e) under the Securities Exchange Act
of 1934, as amended ("1934 Act") a record of the total number of Shares
of the Investment Company, each Fund and each Class thereof, that are
authorized, based upon data provided to it by the Investment Company,
and are issued and outstanding and provide the Investment Company on a
regular basis a report of the total number of Shares that are
authorized and the total number of Shares that are issued and
outstanding;
(xiii) provide a system which will enable the Investment Company
to calculate the total number of Shares of each Fund and Class thereof
sold in each State;
(xiv) monitor and make appropriate filings with respect to the
escheatment laws of the various states and territories of the United
States; and
(xv) oversee the activities of proxy solicitation firms.
(b) Forum shall receive and tabulate proxy votes, coordinate
the tabulation of proxy and shareholder meeting votes and perform such other
additional services as may be specified from time to time by an Investment
Company, all pursuant to mutually acceptable compensation and implementation
agreements.
(c) Each Investment Company or its administrator or other agent (i)
shall identify to Forum in writing those transactions and assets to be
treated as exempt from reporting for each state and territory of the United
States and for each foreign jurisdiction (collectively "States") and (ii)
shall monitor the sales activity with respect to Shareholders domiciled or
resident in each State. The responsibility of Forum for the Investment
Company's State registration status is solely limited to the reporting of
transactions to the Investment Company, and Forum shall have no obligation,
when recording the issuance of Shares, to monitor the issuance of such Shares
or to take cognizance of any laws relating to the issue or sale of such
Shares, which functions shall be the sole responsibility of the Investment
Company or its administrator or other agent.
(d) Forum shall establish and maintain facilities and procedures
reasonably acceptable to each Investment Company for the safekeeping,
control, preparation and use of share certificates, check forms, and
facsimile signature imprinting devices. Forum shall establish and maintain
facilities and procedures reasonably acceptable to each Investment Company
for safekeeping of all records maintained by Forum pursuant to this Agreement.
(e) Forum shall cooperate with each Fund's independent public
accountants and shall take reasonable action to make all necessary
information available to the accountants for the performance of the
accountants' duties.
(f) Except with respect to Forum's duties as set forth in this
Section 2 and except as otherwise specifically provided herein, each
Investment Company assumes all responsibility for ensuring that the
Investment Company complies with all applicable requirements of the
Securities Act, the 1940 Act and any laws, rules and regulations of
governmental authorities with jurisdiction over the Investment Company. All
references to any law in this Agreement shall be deemed to include reference
to the applicable rules and regulations promulgated under authority of the
law and all official interpretations of such law or rules or regulations.
SECTION 3. RECORDKEEPING
(a) Prior to the commencement of Forum's responsibilities under
this Agreement, if applicable, each Investment Company shall deliver or cause
to be delivered over to Forum (i) an accurate list of Shareholders of the
Investment Company, showing each Shareholder's address of record, number of
Shares owned and whether such Shares are represented by outstanding share
certificates and (ii) all Shareholder records, files, and other materials
necessary or appropriate for proper performance of the functions assumed by
Forum under this Agreement (collectively referred to as the "Materials").
Each Investment Company shall on behalf of each applicable Fund or Class
indemnify and hold Forum harmless from and against any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability
arising out of or attributable to any error, omission, inaccuracy or other
deficiency of the Materials, or out of the failure of the Investment Company
to provide any portion of the Materials or to provide any information in the
Investment Company's possession or control reasonably needed by Forum to
perform the services described in this Agreement.
(b) Forum shall keep records relating to the services to be performed
under this Agreement, in the form and manner as it may deem advisable and as
required by applicable law. To the extent required by Section 31 of the 1940
Act, and the rules thereunder, Forum agrees that all such records prepared or
maintained by Forum relating to the services to be performed by Forum under
this Agreement are the property of the Investment Company and will be
preserved, maintained and made available in accordance with Section 31 of the
1940 Act and the rules thereunder, and will be surrendered promptly to the
Investment Company on and in accordance with the Investment Company's
request. Each Investment Company and the Investment Company's authorized
representatives shall have access to Forum's records relating to the services
to be performed under this Agreement at all times during Forum's normal
business hours. Upon the reasonable request of an Investment Company, copies
of any such records shall be provided promptly by Forum to the Investment
Company or the Investment Company's authorized representatives.
(c) Forum and each Investment Company agree that all books, records,
information, and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be voluntarily disclosed
to any other person, except as may be required by law.
(d) In case of any requests or demands for the inspection of the
Shareholder records of an Investment Company, Forum will endeavor to notify
the Investment Company and to secure instructions from an authorized officer
of the Investment Company as to such inspection. Forum shall abide by the
Investment Company's instructions for granting or denying the inspection;
provided, however, that Forum may grant the inspection without instructions
if Forum is advised by counsel to Forum that failure to do so will result in
liability to Forum.
SECTION 4. ISSUANCE AND TRANSFER OF SHARES
(a) Forum shall make original issues of Shares of each Fund and
Class thereof in accordance with the Investment Company's then current
prospectus only upon receipt of (i) instructions requesting the issuance,
(ii) a certified copy of a resolution of the Board authorizing the issuance,
(iii) necessary funds for the payment of any original issue tax applicable to
such Shares, and (iv) an opinion of the Investment Company's counsel as to
the legality and validity of the issuance, which opinion may provide that it
is contingent upon the filing by the Investment Company of an appropriate
notice with the SEC, as required by Section 24 of the 1940 Act or the rules
thereunder. If the opinion described in (iv) above is contingent upon a
filing under Section 24 of the 1940 Act, the Investment Company shall
indemnify Forum for any liability arising from the failure of the Investment
Company to comply with that section or the rules thereunder.
(b) Transfers of Shares of each Fund and Class thereof shall be
registered on the Shareholder records maintained by Forum. In registering
transfers of Shares, Forum may rely upon the Uniform Commercial Code as in
effect in the State of Maryland for BBH Fund, Inc., BBH Common Settlement
Fund, Inc. and BBH Common Settlement Fund II, Inc.; and the Commonwealth of
Massachusetts for BBH Investment Company, or any other statutes that, in the
opinion of Forum's counsel, protect Forum and the Investment Company from
liability arising from (i) not requiring complete documentation, (ii)
registering a transfer without an adverse claim inquiry, (iii) delaying
registration for purposes of such inquiry or (iv) refusing registration
whenever an adverse claim requires such refusal. As Transfer Agent, Forum
will be responsible for delivery to the transferor and transferee of such
documentation as is required by the Uniform Commercial Code.
SECTION 5. SHARE CERTIFICATES
(a) Each Investment Company shall furnish to Forum a supply of
blank share certificates of each Fund and Class thereof and, from time to
time, will renew such supply upon Forum's request. Blank share certificates
shall be signed manually or by facsimile signatures of officers of the
Investment Company authorized to sign by the Organic Documents of the
Investment Company and, if required by the Organic Documents, shall bear the
Investment Company's seal or a facsimile thereof. Unless otherwise directed
by an Investment Company, Forum may issue or register Share certificates
reflecting the manual or facsimile signature of an officer who has died,
resigned or been removed by the Investment Company.
(b) New Share certificates shall be issued by Forum upon
surrender of outstanding Share certificates in the form deemed by Forum to be
properly endorsed for transfer and satisfactory evidence of compliance with
all applicable laws relating to the payment or collection of taxes. Forum
shall forward Share certificates in "non-negotiable" form by first-class or
registered mail, or by whatever means Forum deems equally reliable and
expeditious. Forum shall not mail Share certificates in "negotiable" form
unless requested in writing by the Investment Company and fully indemnified
by the Investment Company to Forum's satisfaction.
(c) In the event that an Investment Company informs Forum that any
Fund or Class thereof does not issue share certificates, Forum shall not
issue any such share certificates and the provisions of this Agreement
relating to share certificates shall not be applicable with respect to those
Funds or Classes thereof.
SECTION 6. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) Shares shall be issued in accordance with the terms of a Fund's
or Class' prospectus after Forum or its agent receives either:
(i) (A) an instruction directing investment in a Fund or Class, (B) a
check (other than a third party check) or a wire or other electronic
payment in the amount designated in the instruction and (C), in the
case of an initial purchase, a completed account application; or
(ii) the information required for purchases pursuant to a selected
dealer agreement, processing organization agreement, or a similar
contract with a financial intermediary.
(b) Shares issued in a Fund after receipt of a completed purchase
order shall be eligible to receive distributions of the Fund at the time
specified in the prospectus pursuant to which the Shares are offered.
(c) Shareholder payments shall be considered Federal Funds no later
than on the day indicated below unless other times are noted in the
prospectus of the applicable Class or Fund:
(i) for a wire received, at the time of the receipt of the wire;
(ii) for a check drawn on a member bank of the Federal Reserve System,
on the next Fund business day following receipt of the check; and
(iii) for a check drawn on an institution that is not a member of the
Federal Reserve System, at such time as Forum is credited with Federal
Funds with respect to that check.
1. SECTION 7. FEES AND EXPENSES
(a) For the services provided by Forum pursuant to this Agreement,
each Investment Company, on behalf of each Fund, agrees to pay Forum the fees
set forth in Clauses (i) and (ii) of Appendix A hereto. Fees will begin to
accrue for each Fund on the latter of the date of this Agreement or the date
of commencement of operations of the Fund. If fees begin to accrue in the
middle of a month or if this Agreement terminates before the end of any
month, all fees for the period from that date to the end of that month or
from the beginning of that month to the date of termination, as the case may
be, shall be prorated according to the proportion that the period bears to
the full month in which the effectiveness or termination occurs. Upon the
termination of this Agreement with respect to a Fund, the applicable
Investment Company shall pay to Forum such compensation as shall be payable
prior to the effective date of termination. Each Investment Company
acknowledges that Forum may from time to time earn money on amounts in the
deposit accounts maintained by Forum to service the Funds (and other clients
serviced by Forum).
(b) In connection with the services provided by Forum pursuant
to this Agreement, each Investment Company, on behalf of each Fund, agrees to
reimburse Forum for the expenses set forth in Appendix A hereto. In
addition, each Investment Company, on behalf of the applicable Fund, shall
reimburse Forum for all reasonable incurred expenses and employee time (at
150% of salary) attributable to any review of the Investment Company's
accounts and records by the Investment Company's independent accountants or
any regulatory body outside of routine and normal periodic reviews. Should
an Investment Company exercise its right to terminate this Agreement, the
Investment Company, on behalf of the applicable Fund, shall reimburse Forum
for all reasonable incurred out-of-pocket expenses and employee time (at 150%
of salary) associated with the copying and movement of records and material
to any successor person and providing assistance to any successor person in
the establishment of the accounts and records necessary to carry out the
successor's responsibilities.
(c) All fees and reimbursements are payable in arrears on a monthly
basis and the applicable Investment Company, on behalf of the applicable
Fund, agrees to pay all fees and reimbursable expenses within thirty (30)
business days following receipt of the respective billing notice.
2. SECTION 8. REPRESENTATIONS AND WARRANTIES
(a) Forum represents and warrants to each Investment Company that:
(i) It is a limited liability company duly organized and
existing and in good standing under the laws of the State of
Delaware;
(ii) It is duly qualified to carry on its business in the State
of Maine;
(iii) It is empowered under applicable laws and by its Operating
Agreement to enter into this Agreement and perform its duties
under this Agreement;
(iv) All requisite corporate proceedings have been taken to
authorize it to enter into this Agreement and perform its duties
under this Agreement;
(v) It has access to the necessary facilities, equipment, and
personnel to perform its duties and obligations under this
Agreement;
(vi) This Agreement, when executed and delivered, will
constitute a legal, valid and binding obligation of Forum,
enforceable against Forum in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies of
creditors and secured parties and to general equity principals;
and
(vii) It is registered as a transfer agent under Xxxxxxx 00X xx
xxx 0000 Xxx.
(x) Each Investment Company represents and warrants to Forum that:
(i) It is duly organized and existing and in good standing
under the laws of the state in which it is organized;
(ii) It is empowered under applicable laws and by its Organic
Documents to enter into this Agreement and perform its duties
under this Agreement;
(iii) All requisite corporate proceedings have been taken to
authorize it to enter into this Agreement and perform its duties
under this Agreement;
(iv) It is an open-end management investment company registered
under the 1940 Act;
(v) This Agreement, when executed and delivered, will
constitute a legal, valid and binding obligation of the
applicable Investment Company, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured
parties and to general equity principals; and
(vi) A registration statement under the Securities Act is
currently effective and will remain effective, and appropriate
State securities law filings have been made and will continue to
be made, with respect to all Shares of the Funds and Classes of
the Trust being offered for sale.
SECTION 9. PROPRIETARY INFORMATION
(a) Each Investment Company acknowledges that the databases, computer
programs, screen formats, report formats, interactive design techniques, and
documentation manuals maintained by Forum on databases under the control and
ownership of Forum or a third party constitute copyrighted, trade secret, or
other proprietary information (collectively, "Proprietary Information") of
substantial value to Forum or the third party. Each Investment Company
agrees to treat all Proprietary Information as proprietary to Forum and
further agrees that it shall not divulge any Proprietary Information to any
person or organization except as may be provided under this Agreement.
(b) Forum acknowledges that the Shareholder list and all information
related to Shareholders furnished to Forum by an Investment Company or by a
Shareholder in connection with this Agreement (collectively, "Customer Data")
constitute proprietary information of substantial value to the Investment
Company. In no event shall Proprietary Information be deemed Customer Data.
Forum agrees to treat all Customer Data as proprietary to the Investment
Company and further agrees that it shall not divulge any Customer Data to any
person or organization except as may be provided under this Agreement or as
may be directed by the Investment Company.
3. SECTION 10. INDEMNIFICATION
(a) Forum shall not be responsible for, and each applicable
Investment Company shall on behalf of each applicable Fund or Class thereof
indemnify and hold Forum harmless from and against, any and all losses,
damages, costs, charges, reasonable counsel fees, payments, expenses and
liability arising out of or attributable to:
(i) all actions of Forum or its agents or subcontractors
required to be taken pursuant to this Agreement, provided that
such actions are taken in good faith and without negligence or
willful misconduct;
(ii) the Investment Company's lack of good faith or the
Investment Company's negligence or willful misconduct;
(iii) the reasonable reliance on or use by Forum or its agents or
subcontractors of information, records, documents or services
which have been prepared, maintained or performed by the
Investment Company or any other person or firm on behalf of the
Investment Company, including but not limited to any previous
transfer agent or registrar;
(iv) the reasonable reliance on, or the carrying out by Forum or
its agents or subcontractors of, any instructions or requests of
the Investment Company on behalf of the applicable Fund; and
(v) the offer or sale of Shares in violation of any requirement
under the Federal securities laws or regulations or the
securities laws or regulations of any State that such Shares be
registered in such State or in violation of any stop order or
other determination or ruling by any federal agency or any State
with respect to the offer or sale of such Shares in such State.
(b) Forum shall indemnify and hold each Investment Company and each
Fund or Class thereof harmless from and against any and all losses, damages,
costs, charges, reasonable counsel fees, payments, expenses and liability
arising out of or attributed to any action or failure or omission to act by
Forum as a result of Forum's lack of good faith, negligence or willful
misconduct with respect to the services performed under or in connection with
this Agreement.
(c) At any time Forum may apply to any officer of an Investment
Company for instructions, and may consult with legal counsel to the
Investment Company or to Forum with respect to any matter arising in
connection with the services to be performed by Forum under this Agreement,
and Forum and its agents or subcontractors shall not be liable and shall be
indemnified by the Investment Company on behalf of the applicable Fund for
any action taken or omitted by it in reasonable reliance upon such
instructions or upon the advice of such counsel. Forum, its agents and
subcontractors shall be protected and indemnified in acting upon (i) any
paper or document furnished by or on behalf of an Investment Company,
reasonably believed by Forum to be genuine and to have been signed by the
proper person or persons, (ii) any instruction, information, data, records or
documents provided Forum or its agents or subcontractors by machine readable
input, telex, CRT data entry or other similar means authorized by an
Investment Company, and (iii) any authorization, instruction, approval, item
or set of data, or information of any kind transmitted to Forum in person or
by telephone, vocal telegram or other electronic means, reasonably believed
by Forum to be genuine and to have been given by the proper person or
persons. Forum shall not be held to have notice of any change of authority
of any person, until receipt of written notice thereof from the Investment
Company. Forum, its agents and subcontractors shall also be protected and
indemnified in recognizing share certificates which are reasonably believed
to bear the proper manual or facsimile signatures of the officers of the
Investment Company, and the proper countersignature of any former transfer
agent or former registrar or of a co-transfer agent or co-registrar of the
Investment Company.
(d) If an Investment Company has the ability to originate electronic
instructions to Forum in order to (i) effect the transfer or movement of cash
or Shares or (ii) transmit Shareholder information or other information, then
in such event Forum shall be entitled to rely on the validity and
authenticity of such instruction without undertaking any further inquiry as
long as such instruction is undertaken in conformity with security procedures
established by Forum from time to time.
(e) Each Investment Company has authorized or in the future may
authorize Forum to act as a "Mutual Fund Services Member" for the Investment
Company or various Funds. Fund/SERV and Networking are services sponsored by
the National Securities Clearing Corporation ("NSCC") and as used herein have
the meanings as set forth in the then current edition of NSCC Rules and
Procedures published by NSCC or such other similar publication as may exist
from time to time. Each Investment Company shall indemnify and hold Forum
harmless from and against any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising directly or
indirectly out of or attributed to any action or failure or omission to act
by NSCC.
(f) In order that the indemnification provisions contained in this
Section shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The
party who may be required to indemnify shall have the option to participate
with the party seeking indemnification in the defense of such claim or to
defend against said claim in its own name or in the name of the other party.
In the event that Forum elects to defend against a claim, the defense shall
be conducted by counsel chosen by Forum and reasonably satisfactory to the
Agent. The party seeking indemnification shall in no case confess any claim
or make any compromise in any case in which the other party may be required
to indemnify it except with the other party's prior written consent.
SECTION 11. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to each
Fund or Class on the earlier of July 10, 2000, or the date on which the
Trust's Registration Statement relating to the Shares of the Fund or Class
becomes effective or the date of the commencement of operations of the Fund
or Class. Upon effectiveness of this Agreement, it shall supersede all
previous agreements between the parties hereto covering the subject matter
hereof insofar as such Agreement may have been deemed to relate to the Funds.
(b) This Agreement shall continue in effect with respect to a
Fund until terminated.
(c) This Agreement may be terminated with respect to a Fund at
any time, without the payment of any penalty (i) by the Board on sixty (60)
days' written notice to Forum or (ii) by Forum on sixty (60) days' written
notice to the Investment Company. Any termination shall be effective as of
the date specified in the notice. Upon notice of termination of this
Agreement by either party, Forum shall promptly transfer to the successor
transfer agent the original or copies of all books and records maintained by
Forum under this Agreement including, in the case of records maintained on
computer systems, copies of such records in machine-readable form, and shall
cooperate with, and provide reasonable assistance to, the successor transfer
agent in the establishment of the books and records necessary to carry out
the successor transfer agent's responsibilities.
(d) The obligations of Sections 3, 7, 8, 9, 10, 14, 15, and 17 shall
survive any termination of this Agreement.
4. SECTION 12. ADDITIONAL FUNDS AND CLASSES
5.
6. In the event that an Investment Company establishes one or more
series of Shares or one or more classes of Shares after the
effectiveness of this Agreement, such series of Shares or classes of
Shares, as the case may be, shall become Funds and Classes under this
Agreement. Forum or an Investment Company may elect not to make any
such series or classes subject to this Agreement.
7. SECTION 13. ASSIGNMENT
8.
9. Except as otherwise provided in this Agreement, neither this
Agreement nor any rights or obligations under this Agreement may be
assigned by either party without the written consent of the other
party. This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and
assigns. Forum may, without further consent on the part of the Trust,
subcontract for the performance hereof with any entity, including
affiliated persons of Forum; provided however, that Forum shall be as
fully responsible to the Trust for the acts and omissions of any
subcontractor as Forum is for its own acts and omissions.
10. SECTION 14. FORCE MAJEURE
11.
12. Forum 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, fire,
mechanical breakdowns, flood or catastrophe, acts of God, insurrection,
war, riots or failure of the mails or any transportation medium,
communication system or power supply.
SECTION 15. LIMITATION OF SHAREHOLDER AND TRUSTEE/Director
LIABILITY
The Trustees/Directors of each Investment Company and the shareholders
of each Fund shall not be liable for any obligations of the Investment
Company or of the Funds under this Agreement, and Forum agrees that, in
asserting any rights or claims under this Agreement, it shall look only to
the assets and property of the Investment Company or the Fund to which
Forum's rights or claims relate in settlement of such rights or claims, and
not to the Trustees/Directors of the Investment Company or the shareholders
of the Funds.
SECTION 16. TAXES
Forum shall not be liable for any taxes, assessments or governmental
charges that may be levied or assessed on any basis whatsoever in connection
with any Investment Company or any Shareholder or any purchase of Shares,
excluding taxes assessed against Forum for compensation received by it under
this Agreement.
SECTION 17. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to another party
for consequential damages under any provision of this Agreement.
(b) Except for Appendix A to add new Funds and Classes in
accordance with Section 12, no provisions of this Agreement may be amended or
modified in any manner except by a written agreement properly authorized and
executed by both parties hereto.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with,
the laws of the State of New York, except as otherwise provided in Section
4(b).
(d) This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
(e) This Agreement may be executed by the parties hereto on any
number of counterparts, and all of the counterparts taken together shall be
deemed to constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion
or portions shall be considered severable and not be affected, and the rights
and obligations of the parties shall be construed and enforced as if the
Agreement did not contain the particular part, term or provision held to be
illegal or invalid. This Agreement shall be construed as if drafted jointly
by both Forum and each Investment Company and no presumptions shall arise
favoring any party by virtue of authorship of any provision of this Agreement.
(g) Section and paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this
Agreement.
(h) Notices, requests, instructions and communications received by
the parties at their respective principal addresses, or at such other address
as a party may have designated in writing, shall be deemed to have been
properly given.
(i) Nothing contained in this Agreement is intended to or shall
require Forum, in any capacity hereunder, to perform any functions or duties
on any day other than a Fund business day. Functions or duties normally
scheduled to be performed on any day which is not a Fund business day shall
be performed on, and as of, the next Fund business day, unless otherwise
required by law.
(j) Notwithstanding any other provision of this Agreement, the
parties agree that the assets and liabilities of each Fund of each Investment
Company are separate and distinct from the assets and liabilities of each
other Fund and that no Fund shall be liable or shall be charged for any debt,
obligation or liability of any other Fund, whether arising under this
Agreement or otherwise.
(k) No affiliated person (as that term is defined in the 1940
Act), employee, agent, director, officer or manager of Forum shall be liable
at law or in equity for Forum's obligations under this Agreement.
(l) Each of the undersigned expressly warrants and represents
that they have full power and authority to sign this Agreement on behalf of
the party indicated and that their signature will bind the party indicated to
the terms hereof and each party hereto warrants and represents that this
Agreement, when executed and delivered, will constitute a legal, valid and
binding obligation of the party, enforceable against the party in accordance
with its terms, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and remedies of
creditors and secured parties.
(m) The terms and "affiliated person," "assignment" and "vote
of a majority of the outstanding voting securities" shall have the meanings
ascribed thereto in the 1940 Act.
(n) The parties agree that the assets and liabilities of each Fund
are separate and distinct from the assets and liabilities of each other Fund
and that no Fund shall be liable or shall be charged for any debt, obligation
or liability of any other Fund, whether arising under this Agreement or
otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly
authorized persons, as of the day and year first above written.
BBH FUND, Inc.
BBH Trust
BBH COMMON SETTLEMENT FUND, INC.
BBH COMMON SETTLEMENT FUND ii, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
FORUM SHAREHOLDER SERVICES, LLC
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Director
TRANSFER AGENCY AND SERVICE AGREEMENT
Appendix A
a. Fees and Expenses
(i) Base Fee:
BBH Fund, Inc. and BBH Trust:
Fees per
CUSIP............................................................$1,000/month
BBH Common Settlement Fund, Inc. and BBH Common Settlement Fund II,
Inc.:
Fees per
CUSIP.............................................................$500/month
(ii) Shareholder Account Fees:
(a) Non- NSCC networked
account..............................$1.50/account/month
(b) NSCC networked
account......................................$0.75/account/month
Shareholder account fees are based upon the number of Shareholder
accounts as of the last Fund Business Day of the prior month.
(iii) Out-Of-Pocket and Related Expenses:
Each applicable Investment Company on behalf of the applicable Fund,
shall reimburse Forum for all out-of-pocket and ancillary expenses in
providing the services described in this Agreement, including but not
limited to, the cost of (or appropriate share of the cost of): (i)
statement, confirmation, envelope and stationary stock, (ii) share
certificates, (iii) printing of checks and drafts, (iv) postage, (v)
telecommunications, (vi) banking services (DDA account, wire and ACH,
check and draft clearing and lock box fees and charges), (vii) NSCC
Mutual Fund Service Member fees and expenses, (viii) outside proxy
solicitors and tabulators, (ix) proxy solicitation fees and (ix)
microfilm and microfiche. In addition, any other expenses incurred by
Forum at the request or with the consent of the Investment Company will
be reimbursed by the applicable Fund.
(iv) Other Expenses
BBH Common Settlement II Fund, Inc. shall compensate Forum for
additional processing arising from the late receipt of prices,
reprocessing of NAVs, and adjustment of accrual rates. The schedule of
these costs is as follows:
(a) Late Prices (received by Forum after 6:30 pm EST) $250 per
occurrence
(b) NAV Reprocess...............................$500 per reprocess
(c) Accrual Adjustment*.........................$500 per adjustment
* Accrual adjustment fees are based upon the understanding that there
is only one shareholder omnibus position in this Fund. Should there be
more than one shareholder position in the Fund, the accrual adjustment
fee will be $750 per adjustment.
(1) BBH TRUST
BBH FUND, INC.
BBH COMMON SETTLEMENT FUND, INC.
(2) BBH COMMON SETTLEMENT FUND II, INC.
ADDENDUM TO TRANSFER AGENCY AND SERVICES AGREEMENT
ADDENDUM, dated as of August 6, 2002, to the Transfer Agency and
Services Agreement dated as of July 1, 2000, and amended and restated as of
August 4, 2003, (the "Agreement") by and among, severally and not jointly,
BBH Fund, Inc., a Maryland corporation, BBH Trust, a Massachusetts trust, BBH
Common Settlement Fund, Inc. a Maryland corporation, and BBH Common
Settlement Fund II, Inc., a Maryland corporation, with their principal office
and place of business at 00 Xxxxx Xxxxxx, Xxxxxx Xxxxxxxxxxxxx 00000 (each,
an "Investment Company"), and Forum Shareholder Services, LLC, a Delaware
limited liability company with its principal office and place of business at
Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 ("Forum").
WHEREAS, each Investment Company is subject to, and has adopted
procedures reasonably designed to ensure its compliance with, all applicable
anti-money laundering laws, regulations, rules and government guidance,
including the reporting, recordkeeping and compliance requirements of the
Bank Secrecy Act ("BSA"), as amended by the USA PATRIOT Act of 2001 (together
with its implementing regulations, the "Patriot Act"), its implementing
regulations, and related governmental and self-regulatory organization rules
and regulations; and
WHEREAS, in accordance with its obligation to provide transfer
agency services under the Agreement, Forum has instituted an anti-money
laundering program that is intended to ensure that each Investment Company is
in material compliance with all applicable anti-money laundering laws,
regulations, rules and government guidance related to the services to be
provided by Forum under the Agreement;
NOW, THEREFORE, the Agreement is hereby amended as follows:
1. Forum agrees to allow appropriate federal examiners to (a)
obtain and inspect information and records maintained by Forum under the
Agreement relating to each Investment Company 's anti-money laundering
program and (b) inspect Forum for purposes of the Investment Company's
anti-money laundering program.
2. Each party agrees to notify the other party promptly about
any known suspicious activities related to open accounts in the Funds.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to
be executed in their names and on their behalf by and through their authorized
persons, as of the day and year first above written.
BBH FUND, INC.
BBH TRUST
BBH COMMON SETTLEMENT FUND, INC.
BBH COMMON SETTLEMENT FUND II, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
FORUM SHAREHOLDER SERVICES, LLC
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Director
