Exhibit (d)(1) under Form N-1A
Exhibit 10 under 601/Reg. S-K
ADVISORY AGREEMENT
BBH FUND, INC.
BBH TRUST
BBH MONEY MARKET PORTFOLIO
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, is amended and restated this January 12, 2004,
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 BROWN
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; provided however, the
Adviser may employ or contract with such person, persons,
corporation or corporations at its own cost and expense and
subject to its supervision and oversight as it shall determine in
order to assist it in carrying on this Agreement; provided
however, with respect to the BBH International Equity Fund, the
Adviser may employ or contract with such other person, persons,
corporation, or corporations at its own cost and expense and
subject to its supervision as it shall determine in order to
assist it in carrying out this Agreement.
(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 1940 Act) 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 House, Fort Street, 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. BROWN BROTHERS XXXXXXXX & CO.
BBH TRUST
BBH MONEY MARKET PORTFOLIO
By: By:
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.
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BBH TRUST Annual Effective
Advisory Date*
Fee
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BBH Tax-Exempt Money Fund 0.15% February 9,
1999
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BBH Tax-Free Short-Intermediate Fixed 0.25% June 9, 1992
Income Fund
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BBH U.S. Treasury Money Fund 0.15% February 12,
1991
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BBH Money Market Portfolio 0.10% December 15,
1993
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BBH Fund, Inc.
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BBH Broad Market Fixed Income Fund 0.20% August 6, 2002
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BBH European Equity Fund 0.65% August 6, 2002
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BBH Inflation-Indexed Securities Fund 0.25% August 6, 2002
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BBH International Equity Fund 0.65% August 6, 2002
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BBH Pacific Basin Equity Fund 0.65% August 6, 2002
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BBH Tax-Efficient Equity Fund 0.65% August 6, 2002
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*Effective date of the Contract with respect to each Fund.
