SUB-ITEM 77Q1: Exhibits
BBH FUND, INC.
BBH TRUST
BBH MONEY MARKET PORTFOLIO
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, is amended and restated this 4th day of August, 2003,
severally and not jointly, among BBH FUND, INC., a Maryland corporation
, BBH TRUST, a Massachusetts business trust, and BBH Money Market Portfolio,
a New York trust (each and "Investment Company"), on behalf of those funds
listed on Exhibit A hereto (the "Funds") each a series of the
Investment Company, and XXXXX BROTHERS XXXXXXXX & CO., a New York limited
partnership (the "Adviser"). This Agreement was initially effective with
respect to each Fund on the date set forth on Exhibit A.
WHEREAS, the Investment Company is an open-end management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Investment Company wishes to retain the Adviser to render
investment advisory services to the Funds, and the Adviser is willing to
render such services;
NOW, THEREFORE, in consideration of the premises and mutual promises
hereinafter set forth, the parties hereto agree as follows:
1. The Investment Company hereby appoints the Adviser to act as
investment adviser to the Funds for the period and on the terms set
forth in this Agreement. The Adviser accepts such appointment and agrees
to render the services herein set forth, for the compensation herein provided.
2. Subject to the general supervision of the Trustees/Directors of
the Investment Company (the "Board"), the Adviser shall manage the investment
operations of the Funds and the composition of the Funds' portfolios
of securities and investments, including cash, the purchase, retention
and disposition thereof and agreements relating thereto, in accordance
with the Funds' investment objective and policies as stated in the
Prospectuses (as defined in paragraph 3 of this Agreement) and subject
to the following understandings:
(a) the Adviser shall furnish a continuous investment
program for each Fund's portfolio and determine from time to time what
investments or securities will be purchased, retained, sold or lent
by the Funds, and what portion of the assets will be invested or held
uninvested as cash;
(b) the Adviser shall use the same skill and care
in the management of each Fund's portfolio as it uses in the
administration of other accounts for which it has investment
responsibility as agent;
(c) the Adviser, in the performance of its duties
and obligations under this Agreement, shall act in conformity with the
Investment Company's Declaration of Trust/Articles of Incorporation
and By-Laws and the Prospectuses of the Funds and with the instructions
and directions of the Directors of the Investment Company and will
conform to and comply with the requirements of the 1940 Act and
all other applicable federal and state laws and regulations
including, without limitation, the regulations and
rulings of the New York State Banking Department;
(d) the Adviser shall determine the securities
to be purchased, sold or lent by the Funds and as agent for the
Funds will effect portfolio transactions pursuant to its
determinations either directly with the issuer or with any broker
and/or dealer in such securities; in placing orders with brokers
and or dealers the Adviser intends to seek best price and
execution for purchases and sales; the Adviser shall also
make recommendations regarding whether or not the Funds shall
enter into repurchase or reverse repurchase agreements and
interest rate futures contracts.
On occasions when the Adviser deems the purchase or sale
of a security to be in the best interest of the Funds as well as
other customers, the Adviser, may, to the extent permitted by applicable
laws and regulations, but shall not be obligated to, aggregate the
securities to be so sold or purchased in order to obtain the best
execution and lower brokerage commissions, if any. In such event,
allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Adviser
in the manner it considers to be the most equitable and consistent
with its fiduciary obligations to the Funds and to such other customers;
(e) the Adviser shall maintain books and records
with respect to the Funds' securities transactions and shall render to
the Investment Company's Trustees such periodic and special reports as
the Trustees may reasonably request; and
(f) the investment management services of the Adviser
to the Funds under this Agreement are not to be deemed exclusive, and
the Adviser shall be free to render similar services to others.
3. The Investment Company has delivered copies of each
of the following documents to the Adviser and will promptly notify
and deliver to it all future amendments and supplements, if any:
(a) Declaration of Trust/Articles of Incorporation
of the Investment Company and amendments thereto (such Declaration of
Trust/Articles of Incorporation and amendments, as presently in effect
and further amended from time to time, are herein called the
"Organizational Document");
(b) By-Laws of the Investment Company (such By-Laws,
as presently in effect and as amended from time to time, are herein
called the "By-Laws");
(c) Certified resolutions of the Board of the
Investment Company authorizing the appointment of the Adviser and
approving the form of this Agreement;
(d) Registration Statement under the 1940 Act and the
Securities Act of 1933, as amended, on Form N-1A (the "Registration
Statement") as filed with the Securities and Exchange Commission (the
"Commission") relating to the Investment Company and the Funds' shares,
and all amendments thereto;
(e) Notification of Registration of the Investment
Company under the 1940 Act on Form N-8A as filed with the Commission; and
(f) Prospectuses of the Funds (such prospectuses, as
presently in effect and as amended or supplemented with respect to the Funds
from time to time, is herein called the "Prospectuses").
4. The Adviser shall keep the Funds' books and records
required to be maintained by it pursuant to paragraph 2(e). The Adviser
agrees that all records which it maintains for each Fund is the property of
the Fund and it will promptly surrender any of such records to the Fund upon
the Fund's request. The Adviser further agrees to preserve for the
periods prescribed by Rule 31a-2 of the Commission under the 1940 Act
any such records as are required to be maintained by the Adviser with
respect to the Funds by Rule 31a-1 of the Commission under the 1940 Act.
5. During the term of this Agreement the Adviser will pay
all expenses incurred by it in connection with its activities under
this Agreement other than the cost of securities and investments
purchased for the Funds (including taxes and brokerage commissions, if any).
6. For the services provided and the expenses borne
pursuant to this Agreement, the Adviser will receive from each Fund
as full compensation therefor a fee as set forth on Exhibit A attached
hereto. This fee will be computed based on the net assets as of 4:00 P.M.
New York time on each business and will be paid to the Adviser
monthly during the succeeding calendar month. In the event the expenses
of any Fund for any fiscal year (including the fees payable to the
Adviser and the Investment Company's administrator (the "Administrator"),
but excluding interest, taxes, brokerage commissions and litigation
and indemnification expenses and other extraordinary expenses not incurred
in the ordinary course of such Fund's business) exceed the lowest applicable
annual expense limitation established pursuant to the statutes or
regulations of any jurisdiction in which Shares of such Fund are then
qualified for offer and sale, the compensation due to the Adviser
hereunder will be reduced by 50% (or 100% if the Investment Company
does not have an Administrator) of the amount of such excess, or if
such excess expenses exceed the amount of the fees payable to the
Adviser and the Administrator, the Adviser shall reimburse such Fund for
50% (or 100% if the Investment Company does not have an Administrator)
of the amount by which such expenses exceed such fees. Any reduction in
the fee payable and any payment by the Adviser to the Funds shall be made
monthly and subject to readjustment during the year.
7. The Adviser shall not be liable for any error of judgment
or mistake of law or for any loss suffered by any Fund in connection
with the matters to which this Agreement relates, except a loss resulting
from a breach of fiduciary duty with respect to the receipt of compensation
for services (in which case any award of damages shall be limited to the
period and the amount set forth in Section 36(b)(3) of the 0000 Xxx) or a
loss resulting from willful misfeasance, bad faith or gross negligence
on its part in the performance of its duties or from reckless disregard
by it of its obligations and duties under this Agreement.
8. This Agreement shall continue in effect for two years
from the date of its execution with respect to any Fund, and thereafter
only so long as its continuance is specifically approved at least annually
in conformity with the requirements of the 1940 Act; provided, however,
that this Agreement may be terminated with respect to any Fund by the
Investment Company at any time, without the payment of any penalty, by
vote of a majority of all the Board of the Investment Company or by
"vote of a majority of the outstanding voting securities" of the
Fund on 60 days written notice to the Adviser, or by the Adviser at any
time, without the payment of any penalty, on 90 days written notice to
the Investment Company. This Agreement will automatically and
immediately terminate in the event of its "assignment".
9. The Adviser shall for all purposes herein be deemed
to be an independent contractor and shall, unless otherwise expressly
provided herein or authorized by the Board of the Investment Company
from time to time, have no authority to act for or represent the
Funds or the Investment Company in any way or otherwise be deemed
an agent of the Funds or the Investment Company.
10. This Agreement may be amended by mutual consent,
provided that any material amendment hereto shall be approved (a) by
vote of a majority of those members of the Board of the Investment
Company who are not parties to this Agreement or "interested persons" of
any such party, cast in person at a meeting called for the purpose of
voting on such amendment, and (b) by "vote of a majority of the
outstanding voting securities" of the Funds.
11. As used in this Agreement, the terms "assignment",
"interested persons" and "vote of a majority of the outstanding voting
securities" shall have the meanings assigned to them respectively
in the 1940 Act.
12. Notices of any kind to be given to the Adviser by
the Investment Company shall be in writing and shall be duly given if
mailed or delivered to the Adviser at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Treasurer, or at such other address or to such other
individual as shall be specified by the Adviser to the Investment Company.
Notices of any kind to be given to the Investment Company by the
Adviser shall be in writing and shall be duly given if mailed or delivered
to the Investment Company BBH Trust or BBH Fund, Inc. at 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, and to BBH Money Market Portfolio at
Xxxxxxxxxxx Xxxxx, Xxxx Xxxxxx, P.O. Box 705, Xxxxxx Town, Grand Cayman,
BWUI, Attention: Secretary, or at such other address or to such other
individual as shall be specified by the Investment Company to the Adviser.
13. The Board has authorized the execution of this Agreement
in their capacity as Trustees/Directors and not individually, and
the Adviser agrees that neither the Investment Company's shareholders
nor the Trustees/Directors nor any officer, employee, representative or
agent of the Investment Company shall be personally liable upon, nor
shall resort be had to their private property for the satisfaction of,
obligations given, executed or delivered on behalf of or by the
Investment Company, that the shareholders, Directors, Trustees, officers,
employees, representatives and agents of the Investment Company shall
not be personally liable hereunder, and that the Adviser shall look
solely to the property of the Investment Company for the satisfaction of
any claim hereunder.
14. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original.
15. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. 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
instrument to be executed by their officers or Partners designated below on
the day and year first above written.
BBH FUND, INC. XXXXX BROTHERS XXXXXXXX & CO.
BBH TRUST
BBH MONEY MARKET PORTFOLIO
I. By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President Title: Managing Director
EXHIBIT A
to the
Investment Advisory Contract
Each of the Funds shall pay to Adviser, for all services rendered
to such Funds by Adviser hereunder, the fees set forth below.
Annual
BBH TRUST Advisory Fee Effective Date
BBH Tax-Exempt Money Fund 0.15% February 9, 1999
BBH Tax-Free Short-Intermediate 0.25% June 9, 1992
Fixed Income Fund
BBH U.S. Treasury Money Fund 0.15% February 12, 1991
BBH Money Market Portfolio 0.10% December 15, 1993
BBH Fund, Inc.
BBH Broad Market Fixed Income Fund 0.20% August 6, 2002
BBH European Equity Fund 0.65% August 6, 2002
BBH Inflation-Indexed Securities 0.25% August 6, 2002
Fund
BBH International Equity Fund 0.65% August 6, 2002
BBH Pacific Basin Equity Fund 0.65% August 6, 2002
BBH Tax-Efficient Equity Fund 0.65% August 6, 2002
