Exhibit (g) (v) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
SECOND AMENDMENT TO AMENDED AND RESTATED TRANSFER AGENCY AND SERVICE AGREEMENT
This Second Amendment to the Amended and Restated Transfer Agency and
Services Agreement (the "Second Amendment") is dated as of July 2, 2004 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, each with its principal office and place of business at 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (each, an "Investment Company" and
collectively, the "Investment Companies"), and Forum Shareholder Services,
LLC, a Delaware limited liability company with its principal office and place
of business at Two Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx 00000 ("Forum").
Whereas pursuant to an Amended and Restated Transfer Agency and Service
Agreement dated as of July 1, 2000 as amended and restated as of August 6,
2002, by and among each of the Investment Companies, severally and not
jointly, and Forum (the "Agreement"), Forum serves as the transfer agent and
registrar of each of the Investment Companies;
Whereas the Investment Companies and Forum wish to make certain
modification to the Agreement for the purpose of clarifying their respective
responsibilities thereunder in response to certain anticipated regulatory
requirement;
Now therefore, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, each of the Investment Companies,
severally but not jointly, and Forum hereby agree to amend the Agreement as
follows:
I. Amendments to the Agreement
1. Section 2(a)(ii) of the Agreement is hereby deleted in its
entirety and the following is substituted therefore:
"(ii) receive for acceptance orders from selected dealers,
processing organizations or financial intermediaries as provided
in Exhibit A hereto, as may be amended from time to time by an
Investment Company, for the purchase, redemption or exchange of
Shares and promptly deliver payment and appropriate documentation
in connection therewith 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. Without the written (including electronic)
authorization of such Investment Company, Forum shall not accept
(i) conditional orders, (ii) orders dated prior to the current
date for non-NSCC initiated transactions, (iii) orders dated
prior to the previous business date for NSCC initiated
transactions, (iv) orders that are not otherwise in compliance
with the Investment Company Act of 1940, as amended, and the
regulations thereunder applicable to Forum or the Investment
Companies related to the acceptance and handling of orders, and
(v) orders that are not in compliance with the terms of the
respective Investment Company's current prospectus, without the
written authorization of a person authorized on behalf of such
Investment Company as per a list of such authorized persons".
2. Section 2(a)(iv) is hereby eliminated in its entirety and the
successive subsections are accordingly renumbered.
3. Section 2(a) of the Agreement is hereby amended by deleted
paragraph 2(a)(x) in its entirety and substituting the following therefore:
"(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 as provided in Exhibit B hereto;".
4. Section 2(a) of the Agreement is hereby amended by adding the
following new paragraph after the end of paragraph 2(a)(xv):
"(xvi) provide such reporting as may be reasonably required
by any Investment Company, with respect to the trading activities
of selected dealers, processing organizations, clearing brokers
or financial intermediaries set forth in Exhibit A hereto and to
monitor compliance with the provisions of their respective sales
and distribution agreements with such Investment Company.".
5. Section 2(f) of the Agreement is hereby deleted in its entirety,
and the following new paragraphs are substituted therefore:
"(f) Forum will promptly notify the Investment Companies in the event
that Forum becomes aware that it is under investigation or about
to be investigated by any regulatory authority.
(g) Forum will be responsible for continuing to comply with all
regulations and laws applicable to Forum. In processing any
order hereunder, Forum will comply with any provisions,
limitations and requirements stated in each Investment Company's
current prospectus for the purchase, redemption or exchange of
shares of such Investment Company including, without limitation
(i) the assessment of front-end sales load charges, redemptions
fees and other charges (if any) payable to an Investment Company,
and (ii) subject to Section (h) below, prevention of trading
practices which result in "market timing" and/or "late trading"
by the Shareholders; provided, however, that Forum shall not be
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required to comply with any limitations imposed prospectively
through any Investment Company prospectus unless it receives
advance written notice of and can, without material amendment to
its systems and processes, process purchase, redemption and
exchange order in compliance with such limitations.
(h) Forum will ensure, as of the date of this Second Amendment and at
all times thereafter, that it has procedures and controls that
are reasonably designed to deter illegal or improper trading in
the shares of mutual funds with respect to which it provides
transfer agency services, including without limitation, late
trading and market timing. Forum will immediately report to the
respective Investment Company any purchases and sales of shares
of such Investment Company by Shareholders that exceed certain
testing criteria as announced by Forum from time to time and as
set forth on Exhibit C hereto, or (subject to Section 2(g) above)
as specifically stated in an Investment Company prospectus or
specifically requested by an Investment Company. Notwithstanding
anything herein to the contrary, the parties acknowledge and
agree that it is not within Forum's discretion to make
determinations about whether any specific trading activity by a
Shareholder constitutes "market timing" or "excessive trading"
and that Forum's obligations with respect to such matters shall
be discharged through the reporting by Forum of trading activity
as described above.
(i) Forum will be responsible for calculating breakpoints discounts
on front-end sales loads that any of the Shareholders is entitled
to receive from a Fund in accordance with such Fund's current
prospectus. In preparing such calculations, Forum will monitor
each Shareholder's ownership of each Fund, Shares owned by each
Shareholder in one or more accounts processed hereunder, and
Shares owned by persons related to each Shareholder, provided
that Forum has actual written notice from the Investment Company,
the Shareholder or a financial intermediary representing such
Shareholder of such familial relationship.
(j) 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 laws and all official interpretations of such law or rules or
regulations."
6. The last sentence in Section 5(a) of the Agreement is hereby
deleted in its entirety and the following is substituted therefore: "Unless
otherwise directed by an Investment Company, Forum may not 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."
7. The introductory text of Section 6(a) of the Agreement is hereby
deleted in its entirety and the following is substituted therefore:
"(a) Shares shall be issued in accordance with this Agreement and the
terms of a Fund's or Class' current prospectus after Forum or its
agent receives either:".
8. Section 8(a) of the Agreement is hereby amended by adding the
following new subsection thereto:
"(viii) It has implemented and will monitor their procedures for
policing market timing and late trading and will annually certify
that such procedures are in place and produce such records as the
Investment Companies may reasonably request.
9. Section 14 of the Agreement is hereby deleted in its entirety and
the following is substituted therefore:
"SECTION 14. FORCE MAJEURE
Each party hereto 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."
10. The Agreement is hereby further amended by adding the following
new Exhibits A, B and C to the Agreement as attached hereto. The parties
agree that any Investment Company may amend Exhibit A upon five (5) business
days' advance written notice to Forum. The parties also agree that each
Investment Company shall deliver a secretary's certificate or other, similar
instructions indicating the name and organization of all persons from whom
Forum may accept instructions (including amendments to Exhibit A) related to
Exhibit A or otherwise with respect to this Agreement, as amended.
II. Miscellaneous
1. Other than as amended hereby, all terms and provisions of the
Agreement are hereby ratified and affirmed by the relevant parties thereto as
of the date hereof and are hereby extended to give effect to the terms hereof.
2. By signing below where indicated, the Investment Companies and
Forum each hereby ratifies and affirms (i) each of their respective
representations and warranties set forth in the Agreement and confirms that
each such respective representation and warranty remains true and correct,
and (ii) that no material breach of the Agreement has occurred and is
continuing, each as of the date hereof.
3. Upon receipt by the Investment Companies of a fully executed copy
of this Second Amendment, this Second Amendment shall be deemed to be
executed as an instrument under seal and governed by the laws of the State of
New York. This Second Amendment may be executed in original counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same First Amendment.
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
