EXHIBIT (E) (I) UNDER FORM N-1A
EXHIBIT (1) UNDER ITEM 601/REG. S-K
DISTRIBUTOR'S AGREEMENT
This Agreement is made this day of , 2007, by
and among EDGEWOOD SERVICES, INC. ("Edgewood"), a New York corporation having
its principal office and place of business at Federated Investors Tower, 0000
Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, BBH TRUST ("Investment
Company"), a Delaware statutory trust, having its principal office and place of
business at 000 Xxxxxxxx, Xxx Xxxx, XX 00000.
In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. Investment Company hereby appoints Edgewood as its agent to sell
and distribute shares of the Investment Company which may be
offered in one or more portfolios (the "Funds") consisting of one
or more classes (the "Classes") of shares (the "Shares"), as
described and set forth on one or more exhibits to this Agreement,
at the current offering price thereof as described and set forth in
the current Prospectuses of the Investment Company. Edgewood
hereby accepts such appointment and agrees to provide such other
services for Investment Company, if any, and accept such
compensation from the Investment Company, if any, as set forth in
the applicable exhibits to this Agreement.
2. The sale of any Shares may be suspended without prior notice
whenever in the judgment of an Investment Company it is in its best
interest to do so.
3. Neither Edgewood nor any other person is authorized by any
Investment Company to give any information or to make any
representation relative to any Shares other than those contained in
the Registration Statement, Prospectuses, or Statements of
Additional Information ("SAIs") filed with the Securities and
Exchange Commission ("SEC") on behalf of said Investment Company,
as the same may be amended from time to time, or in any
supplemental information to said Prospectuses or SAIs approved by
the Investment Company. Edgewood agrees that any other information
or representations other than those specified above which it or any
dealer or other person who purchases Shares through Edgewood may
make in connection with the offer or sale of Shares, shall be made
only upon the prior approval on the part of any Investment Company,
and that any such information and/or representations that are not
preapproved by the relevant Investment Company shall be made
entirely without liability on the part of such Investment Company.
No person or dealer, other than Edgewood, is authorized to act as
agent for any Investment Company for the purposes of this
Agreement. Edgewood agrees that in offering or selling Shares as
agent of Investment Company, it will, in all respects, duly conform
to all applicable state and federal laws and the rules and
regulations of the National Association of Securities Dealers,
Inc., including its Conduct Rules. Edgewood will submit to the
relevant Investment Company copies of all sales literature before
using the same and will not use such sales literature unless
approved by the Investment Company.
4. This Agreement is effective with respect to each Fund and each
Class, as applicable, as of the date of execution of the applicable
exhibit and shall continue in effect with respect to each Fund or
Class presently set forth on an exhibit and any subsequent Funds or
Classes added pursuant to an exhibit during the initial term of
this Agreement for two years from the date set forth above, and
thereafter for successive periods of one year if such continuance
is approved at least annually by the Trustees of Investment Company
including a majority of the members of the Board of Trustees of
said Investment Company who are not "interested persons" (as that
term is defined by the Investment Company Act of 1940 ("1940 Act"))
of the Investment Company and have no direct or indirect financial
interest in the operation of any Distribution Plan relating to the
Investment Company or in any related documents to such Plan
("Independent Trustees") cast in person at a meeting called for
that purpose. If a Fund or Class is added after the first approval
by the Trustees as described above, this Agreement will be
effective as to that Fund or Class upon execution of the applicable
exhibit and will continue in effect until the next approval of this
Agreement by the Trustees and thereafter for successive periods of
one year, subject to approval as described above.
5. This Agreement may be terminated with regard to a particular Fund
or Class at any time, without the payment of any penalty, by the
vote of a majority of the Independent Trustees or by a majority of
the outstanding voting securities of the particular Fund or Class
on not more than ninety (90) days' written notice to any other
party to this Agreement. This Agreement may be terminated with
regard to a particular Fund or Class by Edgewood on ninety (90)
days' written notice to Investment Company.
6. This Agreement may not be assigned by Edgewood and shall
automatically terminate in the event of an assignment by Edgewood
as defined in the 1940 Act, provided, however, that Edgewood may
employ such other person, persons, corporation or corporations as
it shall determine in order to assist it in carrying out its duties
under this Agreement.
7. Subject to the provisions of Section 10 herein, Edgewood shall not
be liable to any Investment Company for anything done or omitted by
it, except acts or omissions involving willful misfeasance, bad
faith, negligence, or reckless disregard of the duties imposed by
this Agreement. Edgewood's total liability to the Investment
Company under this Agreement during any twelve-month period shall
be limited to actual or direct damages up to$500,000.00.
8. This Agreement may be amended at any time by mutual agreement in
writing of all the parties hereto, provided that such amendment is
approved by the Trustees of Investment Company, including a
majority of the Independent Trustees of Investment Company cast in
person at a meeting called for that purpose.
9. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York.
10. (a) Subject to the conditions set forth below, Investment
Company agrees to indemnify and hold harmless Edgewood and
each person, if any, who controls Edgewood within the
meaning of Section 15 of the Securities Act of 1933 ("1933
Act") and Section 20 of the Securities and Exchange Act of
1934 ("1934 Act") against any and all loss, liability,
claim, damage and reasonable expense whatsoever (including
but not limited to any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any
claim whatsoever) arising out of or based upon (1) any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, Prospectuses,
SAIs or sales literature filed with the SEC or the NASD, as
the case may be, on behalf of said Investment Company (as
they may be amended or supplemented from time to time), or
the omission or alleged omission there from of a material
fact required to be stated therein or necessary to make the
statements therein not misleading, unless such statement or
omission was made in reliance upon and in conformity with
written information furnished to said Investment Company
about Edgewood by or on behalf of Edgewood expressly for use
in the Registration Statement, Prospectuses, SAIs or sales
literature or any amendment or supplement thereto; or (2)
the Investment Company's failure to qualify its Shares for
sale in any state or jurisdiction of the United States.
If any action is brought against Edgewood or any controlling
person thereof with respect to which indemnity may be sought
against an Investment Company pursuant to the foregoing
paragraph, Edgewood shall promptly notify the Investment
Company in writing of the institution of such action and the
Investment Company shall assume the defense of such action,
including the employment of counsel selected by the
Investment Company and payment of reasonable expenses. The
failure to give notice as required by this Section 10 in a
timely fashion shall not result in Edgewood's waiver of any
right to indemnification hereunder except to the extent the
Investment Company is prejudiced thereby and then only to
the extent of such prejudice. Edgewood or any such
controlling person thereof shall have the right to employ
separate counsel in any such case, but the fees and expenses
of such counsel shall be at the expense of Edgewood or such
controlling person unless the employment of such counsel
shall have been authorized in writing by the Investment
Company in connection with the defense of such action or the
Investment Company shall not have employed counsel to have
charge of the defense of such action, in any of which events
such fees and expenses shall be borne by the Investment
Company. Despite anything to the contrary in this
paragraph, no Investment Company shall be liable for any
settlement of any such claim of action effected without its
prior written consent. Investment Company agrees promptly
to notify Edgewood of the commencement of any litigation or
proceedings against said Investment Company or any of its
officers or Directors or controlling persons in connection
with the issue and sale of Shares or in connection with the
Registration Statement, any Prospectuses and SAIs, or any
amendment or supplement thereto.
(b)Subject to the conditions set forth below, Edgewood agrees to
indemnify and hold harmless Investment Company, each of its
Trustees, each of its officers who have signed the
Registration Statement and each other person, if any, who
controls said Investment Company within the meaning of
Section 15 of the 1933 Act and Section 20 of the 1934 Act,
against any and all loss, liability, claim, damage and
expense whatsoever (including but not limited to any and all
expenses whatsoever reasonably incurred in investigating,
preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever) arising out of or based
upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement,
Prospectuses or SAIs filed with the SEC on behalf of said
Investment Company (as they may be amended or supplemented
from time to time), or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading,
provided that such statement or omission was made in reliance
upon and in conformity with written information furnished to
said Investment Company about Edgewood by or on behalf of
Edgewood expressly for use in the Registration Statement,
Prospectuses or SAIs, or any amendment or supplement thereto.
If any action is brought against an Investment Company, any
controlling person thereof, or any other person so
indemnified, with respect to which indemnity may be sought
against Edgewood pursuant to the foregoing paragraph, the
Investment Company shall promptly notify Edgewood in writing
of the institution of such action and Edgewood shall assume
the defense of such action, including the employment of
counsel selected by Edgewood and payment of reasonable
expenses. The failure to give notice as required by this
Section 10 in a timely fashion shall not result in the
Investment Company's waiver of any right to indemnification
hereunder except to the extent Edgewood is prejudiced
thereby and then only to the extent of such prejudice.
Investment Company, any such controlling person thereof or
any other person so indemnified, shall have the right to
employ separate counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of the
Investment Company or such persons unless the employment of
such counsel shall have been authorized in writing by
Edgewood in connection with the defense of such action or
Edgewood shall not have employed counsel to have charge of
the defense of such action, in any of which events such fees
and expenses shall be borne by Edgewood. Despite anything
to the contrary in this paragraph, Edgewood shall not be
liable for any settlement of any such claim or for any other
action effected without its prior written consent. Edgewood
agrees promptly to notify the relevant Investment Company of
the commencement of any litigation or proceedings against
Edgewood or any of its controlling persons in connection
with the issue and sale of Shares or in connection with the
Registration Statement, Prospectuses or SAIs.
(c)Nothing herein contained shall be deemed to protect any
person against liability to an Investment Company or its
shareholders to which such person would otherwise be subject
by reason of willful misfeasance, bad faith or negligence in
the performance of the duties of such person or by reason of
the reckless disregard by such person of the obligations and
duties of such person under this Agreement.
(d)Insofar as indemnification for liabilities may be permitted
pursuant to Section 17 of the 1940 Act for an Investment
Company, Trustees, officers, Edgewood and controlling
persons of Investment Company by the Trustees pursuant to
this Agreement, Investment Company is aware of the position
of the Securities and Exchange Commission as set forth in
the Investment Company Act Release No. IC-11330. Therefore,
Investment Company undertakes that in addition to complying
with the applicable provisions of this Agreement, in the
absence of a final decision on the merits by a court or
other body before which the proceeding was brought, that an
indemnification payment will not be made unless in the
absence of such a decision, a reasonable determination based
upon factual review has been made (i) by a majority vote of
a quorum of non-party Independent Trustees, or (ii) by
independent legal counsel in a written opinion that the
indemnitee was not liable for an act of willful misfeasance,
bad faith, gross negligence or reckless disregard of duties.
Investment Company further undertakes that advancement of
expenses incurred in the defense of a proceeding (upon
undertaking for repayment unless it is ultimately determined
that indemnification is appropriate) against an Investment
Company, officer, Trustees, Edgewood or controlling person
of said Investment Company will not be made absent the
fulfillment of at least one of the following conditions: (i)
the indemnitee provides security for his undertaking; (ii)
said Investment Company is insured against losses arising by
reason of any lawful advances; or (iii) a majority of a
quorum of non-party Independent Trustees or independent
legal counsel in a written opinion makes a factual
determination that there is reason to believe the indemnitee
will be entitled to indemnification.
11. If at any time the Shares of any Fund are offered in two or more
Classes, Edgewood agrees to assist in adopting a written plan
pursuant to Rule 18f-3 under the 1940 Act.
12. This Agreement will become binding on the parties hereto upon the
execution of the attached exhibits to the Agreement.
13.Edgewood or its affiliate will review and file all sales literature
(advertisements, brochures and shareholder communications) for
Investment Company in accordance with rules and regulations of the
National Association of Securities Dealers, Inc.
14.Edgewood agrees to maintain the security and confidentiality of
nonpublic personal information ("NPI") of Investment Company's
customers and consumers, as those terms are defined in Xxxxxxxxxx
X-X, 00 XXX Part 248. Edgewood agrees to use and redisclose such
NPI for the limited purposes of processing and servicing
transactions, or for specified law enforcement purposes; and to
service providers or in connection with joint marketing
arrangements directed by an Investment Company, in each instance in
furtherance of fulfilling Edgewood's obligations under this
Agreement and consistent with the exceptions provided in 17 CFR
Sections 248.14, 248.15 and 248.13, respectively.
15. (a) Investment Company and Edgewood hereby acknowledge that the
Investment Companies have delegated the responsibilities
under the USA Patriot Act enumerated below to Edgewood:
(1) Screening for and prohibiting transactions with
foreign shell banks;
(2) Correspondent and Private bank screening and
documentation;
(3) Suspicious activity screening and reporting;
(4) Cash and cash equivalent transaction reporting;
(5) Information sharing as provided by the USA Patriot
Act;
(6) Customer identification, verification and records
maintenance of those investor clients dealing
directly with Edgewood;
(7) Contract with certain financial intermediaries
selling Shares of the Funds to perform customer
identification, verification and records maintenance
of those investor clients dealing directly with the
financial intermediary; and
(8) Assess the reputation and associated risk of
establishing relationships with financial
intermediaries through either omnibus or individually
registered accounts.
(b) Edgewood accepts such delegation and represents and warrants
that (1) it has examined the aspects of its operations that
may give rise to Bank Secrecy Act and/or U. S. Treasury
Department regulatory requirements or that are vulnerable to
money laundering or terrorist financing activity, (the
"Suspect Activity"), (2) it has developed an anti-money
laundering program (the "Program") in the reasonable and
good faith belief that the effective implementation of the
Program will result in compliance with applicable regulatory
requirements and the elimination of Suspect Activity, and
(3) it has implemented the Program and will continue to (i)
monitor the operation of, (ii) assess the effectiveness of,
and (iii) modify, as appropriate or as required by
applicable requirements, the Program.
(c) Edgewood further acknowledges that, because the Investment
Companies remain responsible for assuring compliance with
anti-money laundering regulations, Edgewood agrees to
provide information and reports to the Investment Companies'
designated Compliance Officer, as may from time to time be
requested, and, in addition, to provide the Compliance
Officer with notice of any contact by any regulatory
authority or its contemplated response to the regulatory
authority.
(d) Edgewood does hereby consent to and provide its assurance
that it will provide to any federal examiners of the
Investment Companies such information and records relating
to the Program as may be requested and will allow those
examiners to inspect Edgewood for purposes of the Program.
- 1 -
EDGEWOOD SERVICES, INC.
By:
Name: Xxxxxxx X. Xxxxx, Xx.
Title: President
BBH TRUST
By:
Name:
Title:
- 2 -
Exhibit A
to the
Distributor's Agreement
BBH TRUST:
BBH Broad Market Fund
Class I Shares
Class N Shares
BBH Core Select
Class N Shares
BBH International Equity Fund
Class I Shares
Class N Shares
BBH Money Market Fund
Class I Shares
Regular Shares
BBH Real Return Fund
Class I Shares
Class N Shares
BBH Tax-Exempt Money Fund
BBH U.S. Treasury Money Fund
In consideration of the mutual covenants set forth in the Distributor's
Agreement dated , 2007, among BBH TRUST and EDGEWOOD SERVICES, INC. with
respect to the Funds and Class of shares set forth above.
Witness the due execution hereof this day of , 2007.
EDGEWOOD SERVICES, INC. BBH TRUST
By: By:
Name: Xxxxxxx X. Xxxxx, Xx. Name:
Title: President Title:
