EXHIBIT (H) (IV) UNDER FORM N-1A
EXHIBIT (10) UNDER ITEM 601/REG. S-K
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of the day of , 2007, between BBH
TRUST, a Delaware statutory trust having its principal office and place of
business at 00 Xxxxx Xxxxxx, Xxxxxx Xxxxxxxxxxxxx 00000 ("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, the 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, the Investment Company offers shares in various series (each
such series, together with all other series subsequently established by the
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
the 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 the Investment Company in a Fund being herein referred to as a "Class," and
collectively as the "Classes");
WHEREAS, the 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, the Investment Company and Forum hereby agree as
follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The 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 the 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, the Investment Company has delivered to
Forum copies of (i) the Investment Company's 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) the current plan of distribution or similar document adopted by the
Investment Company under Rule 12b-1 under the 1940 Act ("Plan") and the 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;
("Board") appointing Forum and authorizing the execution and delivery of this
Agreement.
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SECTION 2. DUTIES OF FORUM
(a) Forum agrees that in accordance with procedures established from
time to time by agreement between the 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 from selected dealers,
processing organizations or financial intermediaries as provided in
Exhibit A hereto, as may be amended from time to time by the 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.
(iii) pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(iv) 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;
(v) effect transfers of Shares upon receipt of appropriate
instructions from Shareholders;
(vi) prepare and transmit to Shareholders (or credit the
appropriate Shareholder accounts) payments for all distributions declared
by the Trust with respect to Shares;
(vii) 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;
(viii) 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;
(ix) 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;
(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;
(xi) 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;
(xii) 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;
(xiii) monitor and make appropriate filings with respect to the
escheatment laws of the various states and territories of the United
States; and
(xiv) oversee the activities of proxy solicitation firms.
(xv) 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.
(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 the Investment
Company, all pursuant to mutually acceptable compensation and implementation
agreements.
(c) The 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 the 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 the 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) 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 the 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 the 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 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 the Investment Company prospectus or
specifically requested by the 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, the
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.
SECTION 3. RECORDKEEPING
(a) Prior to the commencement of Forum's responsibilities under this
Agreement, if applicable, the 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"). The 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. The 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 the 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 the 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 the 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) The 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 the 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.
(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 the 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 this Agreement and the
terms of a Fund's or Class' current 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.
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SECTION 7. FEES AND EXPENSES
(a) For the services provided by Forum pursuant to this Agreement, the
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. The 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, the Investment Company, on behalf of each Fund, agrees to reimburse
Forum for the expenses set forth in Appendix A hereto. In addition, the
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 the 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.
SECTION 8. REPRESENTATIONS AND WARRANTIES
(a) Forum represents and warrants to the 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 Section 17A of
the 1934 Act.
(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.
(b) The 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) The 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. The 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 the 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.
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 the 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 the 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 the 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 the 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 the 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) The 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. The 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.
SECTION 12. ADDITIONAL FUNDS AND CLASSES
In the event that the 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 the Investment Company
may elect not to make any such series or classes subject to this Agreement.
SECTION 13. ASSIGNMENT
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.
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.
SECTION 15. LIMITATION OF SHAREHOLDER AND TRUSTEE/DIRECTOR LIABILITY
The Trustees/Directors of the 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 the 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 the 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 TRUST
By:
Name:
Title:
FORUM SHAREHOLDER SERVICES, LLC
By:
Name:
Title:
3
TRANSFER AGENCY AND SERVICE AGREEMENT
Appendix 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.
4
EXHIBIT A
SELECTED DEALERS, PROCESSING ORGANIZATIONS OR FINANCIAL INTERMEDIARIES
Name of Dealer, Organization or Financial Intermediary Service Level
Standard
Xxxxxx Xxxxxx I
American Express I
Ameritrade II
Xxxxx Brothers Xxxxxxxx I
National Financial Services Corporation I
Fidelity Investment Institutional Operations Company I
FiServ II
Instinet Clearing Corp. II
LPL Financial II
Mid Atlantic Corp. II
Pershing II, III
PFPC II
Xxxxxx I
National Investors Service Corp. I
Xxxxx Fargo II
I - This is a Financial Intermediary, as defined in the Funds' prospectus.
This account is an omnibus account for the benefit of the Financial
Intermediary's clients and as such, not withstanding paragraph 2(g) and
2(H of the Agreement:
Forum may accept trades up to 9:00 AM on the business day after the
trade date to be executed at the prior days NAV without approval
from the Investment Company.
Forum shall not apply a redemption fee to trades in this account.
Forum shall not apply the Funds' initial or subsequent dollar
minimums to trades in this account.
Forum shall not be responsible to deter illegal or improper trading
in this account.
II - This is a Financial Intermediary, as defined in the Funds' prospectus.
Accounts for this Financial Intermediary trade through the NSCC Network
Level 3 for the benefit of the Financial Intermediary'' clients and as
such, not withstanding paragraph 2(g) and 2(h) of the Agreement:
Forum may accept trades up to 9:00 AM on the business day after the
trade date to be executed at the prior days NAV without approval
from the Investment Company.
Forum shall not apply the Funds' initial or subsequent dollar
minimums to trades in this account.
III. - This Financial Intermediary acts as a clearing broker for other Financial
Intermediaries not named above. Service level II will apply to all
accounts that clear through this Financial Intermediary.
5
EXHIBIT B
REPORTING
Internet Account Access
Monthly Report of Commission paid by Broker by Fund
Monthly Report of 12b-1 fees paid by Broker by Fund
Monthly Report of Summary of Average Net Assets by Broker
Monthly Report Detail of Average Net Assets by Brokers for each Account
Monthly Report of Capital Stock Transaction by Fund
Monthly Report of New Accounts Opened by Fund
Monthly Report of All Redemption Fees Applied by Account
Monthly Report of all non NSCC Transactions processed after the Fund's cutoff
time
Annual Report of Independent Auditors Review of Internal Controls (SAS 70)
6
EXHIBIT C
FORUM TESTING CRITERIA
All non-money market trades are reviewed on a daily basis for redemption amounts
greater than $99,999.99 (non-omnibus accounts) and $999,999.99 (omnibus
accounts). Accounts with such activity are researched by Forum to determine
whether there has been an offsetting purchase in the account within the prior
five-day period. Any offenses will be reported by Forum immediately to the
Investment Company. No action will be taken by Forum regarding blocking
accounts or contacting customer/financial intermediary unless Forum is
instructed to do so by the Investment Company.
7
BBH TRUST
ADDENDUM TO TRANSFER AGENCY AND SERVICES AGREEMENT
ADDENDUM, dated as of , 2007, to the Transfer Agency
and Services Agreement dated as of , 2007, between BBH TRUST, a Delaware
statutory trust, having its principal office and place of business at 00 Xxxxx
Xxxxxx, Xxxxxx Xxxxxxxxxxxxx 00000 ("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, the 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 the 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 the 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 TRUST
By:
Name:
Title:
FORUM SHAREHOLDER SERVICES, LLC
By:
Name:
Title:
8
AML AMENDMENT TO TRANSFER AGENCY AND SERVICES AGREEMENT
BBH TRUST ("Trust") and FORUM SHAREHOLDER SERVICES, LLC ("FSS") are
parties to an agreement dated as of 2007 (the "Agreement") under which
FSS performs certain transfer agency and/or recordkeeping services for the
Trust.
In connection with the enactment of the USA Patriot Act of 2001 and the
regulations promulgated thereunder (collectively the "Act"), the Trust is
required to adopt an Anti-Money Laundering ("AML") Program. The Trust and FSS
agree to amend the Agreement to delegate to FSS certain responsibilities in
connection with the Act and the Trust's AML Program, as set forth below.
1. Adoption of Program; Delegation to FSS
(a) The Trust acknowledges that it is a financial institution subject to the
Act and the Bank Secrecy Act (collectively, the "AML Acts"). The Trust has
adopted, and agrees to comply with, a written AML Program and has appointed and
AML Compliance Officer, each of which actions have been approved by the Board of
Trustees of the Trust (the "Board"). Subject to delegation of certain
responsibilities to FSS, as provided below, the Trust's AML Program is
reasonably designed to ensure compliance in all material respects with the AML
Act and applicable regulations adopted thereunder (the "Applicable AML Laws"),
in light of the particular business of the Trust, taking into account factors
such as its size, location, activities and risks or vulnerabilities to money
laundering.
(b) The Trust hereby delegates to FSS the performance, on behalf of the
Trust, of the services set forth in Schedule A to this Amendment (the "AML
Services") with respect to the shareholder accounts maintained by FSS pursuant
to the Agreement (including, as and to the extent set forth in Schedule A,
direct accounts; accounts maintained through FUND/SERV and Networking; and
omnibus accounts); and , subject to the terms and conditions of the Agreement
and this Amendment, including Section 2(d) below, FSS accepts this delegation
and agrees to perform the AML Services in accordance with the Trust's and FSS'
AML Program and to cooperate with the Trust's AML Compliance Officer (as defined
below) in the performance of its responsibilities hereunder.
(c) Notwithstanding this delegation, the Trust shall maintain full
responsibility for ensuring that its AML Program is and continues to be
reasonably designed to ensure compliance with the Applicable AML Laws. FSS
shall maintain policies, procedures and internal controls that are consistent
with the Trust's AML Program and the requirement that the Trust employ
procedures reasonably designed to achieve compliance with the Applicable AML
Laws and the Trust's AML Program.
(d) The Trust recognizes that the performance of the AML Services involves
the exercise of discretion, which in certain circumstances may result in
consequences to the Trust and its shareholders (such as in the case of the
reporting of suspicious activities and the freezing of shareholders). The Trust
authorizes FSS to take such actions in the performance of the AML Services as
FSS deems appropriate and consistent with the Trust's AML Program and Applicable
AML Laws.
2. Exceptions to Procedures; Amendments
(a) The Trust acknowledges and agrees that any deviation from FSS' written
transfer agent compliance procedures (an "Exception") may involve substantial
risk of loss. FSS may in its sole discretion refuse to accept any request by
the Trust that FSS make an Exception to any written compliance or transfer
agency procedures adopted by FSS, or adopted by the Trust and approved by FSS
(including any requirements of the Trust's AML Program).
(b) Exception requests may only be made in writing signed by an authorized
representative of the Trust (other than an employee of FSS), provided that an
exception concerning the requirements of the Trust's AML Program must be signed
by the Trust's anti-money laundering compliance officer ("AML Compliance
Officer"). Approved exceptions shall become effective when and only if set
forth in a written acceptance of the Exception signed by FSS' Director or FSS'
AML Compliance Officer. An Exception is effective only on a transaction by
transaction basis.
(c) Notwithstanding any provision of the Agreement or this Amendment to the
contrary, as long as FSS acts in good faith and without gross negligence, FSS
shall have no liability for any loss, liability, expenses or damages to the
Trust resulting from an Exception.
(d) The Trust's AML Officer shall provide forty-five (45) days prior written
notice of any amendment to the Trust's AML Program that would have a material
impact upon the AML Services to be provided by FSS, and any services required to
be provided by FSS pursuant to such amendment shall be considered an Exception
until the consent of FSS, which shall not be unreasonably withheld, is obtained.
3. Representations and Warranties; Documents and Information; Access
(a) The Trust represents and warrants that (i) the Trust has adopted a
written AML Program, and has appointed the Trust's AML Compliance Officer; (ii)
the AML Program and the designation of the AML Officer have been approved by the
Board of Trustees of the Trust (the "Board"); and (iii) the delegation of FSS of
the AML Services has been approved by the Board.
(b) FSS represents and warrants to the Trust that (1) it has adopted and will
maintain a written program concerning the anti-money laundering services it
provides to its various clients; (2) its policies and procedures are reasonably
adequate for it to provide the AML Services and comply with its obligations
under this Agreement; (3) it shall conduct (or have a third party conduct) an
independent review of its AML Program at least annually and provide the report
of such independent review to the Trust; (4) it shall maintain an ongoing
program with respect to its own personnel; and (5) it shall maintain an AML
compliance officer to administer the servicing of those aspects of the Trust's
AML Program that have been expressly delegated to FSS.
(c) The Trust agrees to furnish FSS with such information and documents as
may be reasonably requested by FSS from time to time to provide the AML
Services. The Trust agrees to notify FSS promptly about any known suspicious
activities related to open accounts.
(d) FSS agrees to furnish the Trust its written program concerning anti-money
laundering services rendered by FSS to its various clients. FSS agrees to
notify the Trust of any change to its anti-money laundering program that would
materially impact the Trust's AML Program.
(e) FSS shall grant reasonable access to each of the Trust, the AML
Compliance Officer, and regulators having jurisdiction over the Trust, to the
books and records maintained by FSS and related to the AML Services, and shall
permit federal examiners to inspect FSS for purposes of the Trust's AML Program.
Records may be edited or redacted to maintain confidentiality of materials
related to other clients of FSS. FSS shall makes its relevant personnel
available to meet or speak with the Board concerning the AML Services at least
annually or at such other intervals as may be reasonably necessary or
appropriate.
4. Expenses
In consideration of the performance of the foregoing duties, the Trust agrees to
pay FSS for the reasonable administrative expenses and out of pocket costs that
may be associated with such additional duties. The terms of the Agreement shall
apply with respect to the payment of such expense in the same manner and to the
same extent as any other expenses incurred under the Agreement.
5. Miscellaneous
(a) This Amendments supplement and amends the Agreement. The provisions set
forth in this Amendment supersede all prior negotiations, understandings and
agreements bearing upon the subject matter covered herein, including any
conflicting provisions of the Agreement or any provisions of the Agreement that
directly cover or indirectly bear upon matters covered under this Agreement.
(b) Each reference to the Agreement in the Agreement (as it existed prior to
this Amendment) and in every other agreement, contract or instrument to which
the parties are bound, shall hereafter be construed as a reference to the
Agreement as amended by this Amendment. Except as provided in this Amendment,
the provisions of the Agreement remain in full force and effect (including,
without limitation, the term of the Agreement). No amendment or modification to
this Agreement shall be valid unless made in writing and executed by both
parties hereto.
(c) Section and paragraph headings in this Amendment are included for
convenience only and are not to be used to construe or interpret this Amendment.
(d) This Amendment may be executed in counterparts, each of which shall be an
original but all of which, taken together, shall constitute one and same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed all as of the day and year first above written.
BBH TRUST FORUM SHAREHOLDER SERVICES, LLC
By: By:
Name: Name: h
Title: Title: r
9
SCHEDULE A
AML SERVICES
With respect to the beneficial ownership of, and transactions in, shares of the
Fund for which the Transfer Agent maintains the applicable shareholder
information, the Transfer Agent shall:
(a) Review and submit all shareholder financial and non-financial
transactions through the Office of Foreign Assets Control Database(and any other
lists of known or suspected terrorists or terrorist organizations issued by any
Federal government agency and designated as such by Treasury in connection with
the Federal functional regulators), including screening of all shareholder
accounts upon changes to such database.
(b) Screen all shareholder accounts at the request of Financial Crimes
Enforcement Network ("FinCEN") pursuant to Section 314(a) of the PATRIOT Act and
report any positive "hits" to FinCEN.
(c) Monitor shareholder accounts and identify and report suspicious
activities that are required to be so identified and reported, in each case
consistent with the Trust's and FSS' AML Programs.
(d) Place holds on transactions in shareholder accounts or freeze assets in
shareholder accounts, as provided in the Trusts' and FSS' AML Programs and in
accordance with the Act and OFAC.
(e) If and to the extent required by applicable law, ensure that shareholder
identity has been verified, as provided for in the Trust's and FSS' AML Programs
and in accordance with Section 326 of the PATRIOT Act.
(f) Follow the Funds' policy, which may change from time to time, with
respect to the acceptance of cash equivalents and third party checks.
(g) Follow the Funds' policy on accounts held by non-US persons.
(h) Maintain all records or other documentation related to shareholder
accounts and transactions therein that are required to be prepared and
maintained pursuant to the Trust's and FSS' AML Programs, and make the same
available for inspection by (i) the Trust's AML Compliance Officer, (ii) any
auditor of the Trust's AML Program or related procedures, policies or controls
that has been designated by the Trust in writing, or (iii) regulatory or law
enforcement authorities, and otherwise make said records or other documents
available at the direction of the Trust's AML Compliance Officer.
Notes: As concerns Networking Level III accounts and omnibus accounts, the AML
Services performed by FSS are subject to a more limited scope, as contemplated
under the interim final rule of the Department of the Treasury, 31 CFR 103,
effective April 24, 2002 (the "Interim Final Rule").
In the event that FSS detects suspicious activity or a "positive" hit as a
result of the foregoing procedures, which necessitates the filing by FSS of a
suspicious activity report, or other similar report or notice to FinCEN or to
OFAC, then FSS shall also immediately notify the Trust's AML Compliance Officer,
unless prohibited by applicable law.
10
FORUM
FINANCIAL GROUP
November 26, 2003
Xx. Xxxxxx Xxxxxx
Xxxxx Brother Xxxxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
RE: Change in Control of Forum Shareholder Services, LLC
Dear Xx. Xxxxxx:
As you know, Forum Shareholder Services, LLC ("Forum") has a Transfer Agency and
Services Agreement (the "Contract") with BBH Fund, Inc., BBH Trust, BBH Common
Settlement Fund, Inc., and BBH Common Settlement Fund II, Inc. (the "Fund"). In
accordance with the terms of the Contract, we are seeking your consent to an
"assignment" of the Contract by Forum in connection with a proposed transaction
that will result in a change in control of Forum.
On November 2, 2003, the current owners of Forum entered into a Purchase
Agreement that provides for the acquisition of Forum by Citicorp or one of its
affiliates. The closing of the transaction is subject to certain conditions but
we expect that it will be completed on or about December 18, 2003. The
accompanying material summarizes this change in control transaction. We believe
that this change in control transaction could constitute an "assignment" of the
Contract.
We request that the Fund consent to the "assignment" of the Contract in
connection with the change in control of Forum resulting from this transaction.
If the Fund consents to the assignment, please countersign this letter to
acknowledge that consent and return it to me in the enclosed, self-addressed
envelope.
If you have any questions, please do not hesitate to contact me at (207) 822-
6105 or by e-mail at xxxx-xxxxxxxx@xxxxx-xxxxxxxxx.xxx.
Sincerely,
/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Director, Forum Financial Services
CONSENT TO ASSIGNMENT OF THE CONTRACT:
/s/ Xxxxxx X. Xxxxxx
By: Xxxxxx X. Xxxxxx
Title: Vice President
Two Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
xxx.xxxxx-xxxxxxxxx.xxx
11
