Exhibit 23(h)(iv) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
BBH COMMON SETTLEMENT II FUND, INC.
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of the 10th day of May, 2001, by and between BBH
Common Settlement II Fund, Inc., a Maryland corporation with its principal
office and place of business at 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 (the
"Fund") 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 Fund 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, $0.001 par value (the "Shares"), in
separate series and classes; and
WHEREAS, the Fund desires that Forum perform as the transfer agent and
dividend disbursing agent 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 Fund and Forum hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Fund, hereby appoints Forum to act as, and Forum agrees to act
as, (i) transfer agent for the authorized and issued shares of the Fund
("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 the Fund ("Shareholders") and set out in the currently
effective Offering Documents ("Offering Documents") of the Fund, including,
without limitation, any periodic investment plan or periodic withdrawal
program.
(b) In connection therewith, the Fund has delivered to Forum copies of
(i) the Fund's Articles of Incorporation and Bylaws (collectively, as amended
from time to time, "Organic Documents"), (ii) the Fund's Registration
Statement and all amendments thereto filed with the U.S. Securities and
Exchange Commission ("SEC") pursuant to the 1940 Act (the "Registration
Statement"), (iii) the Fund's current Offering Documents, and (iv) each
current plan of distribution or similar document adopted by the Fund under
Rule 12b-1 under the 1940 Act ("Plan") and each current shareholder service
plan or similar document adopted by the Fund ("Service Plan") and shall
promptly furnish Forum with all amendments of or supplements to the
foregoing. The Fund shall deliver to Forum a certified copy of the resolution
of the Board of Directors of the Fund (the "Board") appointing Forum and
authorizing the execution and delivery of this Agreement.
SECTION 2. DUTIES OF FORUM
(a) Forum agrees that in accordance with procedures established from
time to time by agreement between the Fund 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 for the purchase of Shares and
promptly deliver payment and appropriate documentation therefor to the
custodian of the Fund (the "Custodian") or, in the case of a Fund
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;
(iii) pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(iv) receive for acceptance redemption requests and deliver the
appropriate documentation therefor to the Custodian or, in the case of
a Fund operating in a master-feeder structure, to the transfer agent or
interestholder recordkeeper for the master fund in which the Fund
invests;
(v) 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;
(vi) effect transfers of Shares upon receipt of appropriate
instructions from Shareholders;
(vii) prepare and transmit to Shareholders (or credit the appropriate
Shareholder accounts) payments for all distributions declared by the
Fund with respect to Shares;
(viii) 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 Fund and, at the option of Forum,
issue replacement certificates in place of mutilated share certificates
upon presentation thereof without requiring indemnification;
(ix) 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;
(x) track shareholder accounts by financial intermediary source and
otherwise as reasonably requested by the Fund and provide periodic
reporting to the Fund or its administrator or other agent;
(xi) maintain records of account for and provide reports and statements
to the Fund and Shareholders as to the foregoing;
(xii) record the issuance of Shares of the Fund 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
Fund, and each class thereof, that are authorized, based upon data
provided to it by the Fund, and are issued and outstanding and provide
the Fund 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;
(xiii) provide a system which will enable the Fund to calculate the
total number of Shares of the Fund, and Class thereof, sold in each
State;
(xiv) monitor and make appropriate filings with respect to the
escheatment laws of the various states and territories of the United
States; and
(xv) oversee the activities of proxy solicitation firms.
(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 Fund, all
pursuant to mutually acceptable compensation and implementation agreements.
(c) The Fund 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 Fund's State registration status is
solely limited to the reporting of transactions to the Fund, 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 Fund or its administrator or other agent.
(d) Forum shall establish and maintain facilities and procedures
reasonably acceptable to the Fund 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 Fund for safekeeping of all records
maintained by Forum pursuant to this Agreement.
(e) Forum shall cooperate with the 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) Except with respect to Forum's duties as set forth in this Section
2 and except as otherwise specifically provided herein, the Fund assumes all
responsibility for ensuring that the Fund 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 Fund. 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
law 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 Fund shall deliver or cause to be delivered
over to Forum (i) an accurate list of Shareholders of the Fund, 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 Fund shall 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 Fund to provide any portion of the
Materials or to provide any information in the Fund'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 Fund 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 Fund on and in
accordance with the Fund's request. The Fund and the Fund'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 Fund, copies of any such
records shall be provided promptly by Forum to the Fund or the Fund's
authorized representatives.
(c) Forum and the Fund 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 Fund, Forum will endeavor to notify the Fund and
to secure instructions from an authorized officer of the Fund as to such
inspection. Forum shall abide by the Fund'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 the Fund and Class
thereof in accordance with the Fund's then current Offering Documents 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 Fund's counsel as to the legality and validity of
the issuance, which opinion may provide that it is contingent upon the filing
by the Fund 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 Fund
shall indemnify Forum for any liability arising from the failure of the Fund
to comply with that section or the rules thereunder.
(b) Transfers of Shares of the Fund and any 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 or any other statutes that, in the opinion of
Forum's counsel, protect Forum and the Fund 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 Fund shall furnish to Forum a supply of blank share
certificates of the Fund and any 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 Fund authorized
to sign by the Organic Documents of the Fund and, if required by the Organic
Documents, shall bear the Fund's seal or a facsimile thereof. Unless
otherwise directed by the Fund, Forum may issue or register Share
certificates reflecting the manual or facsimile signature of an officer who
has died, resigned or been removed by the Fund.
(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 Fund and fully indemnified by the Fund to
Forum's satisfaction.
(c) In the event that the Fund 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 the Fund or any Classes
thereof.
SECTION 6. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) Shares shall be issued in accordance with the terms of the Fund's
or Class' Offering Documents after Forum or its agent receives either:
(i) (A) an instruction directing investment in the 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 the Fund after receipt of a completed purchase
order shall be eligible to receive distributions of the Fund at the time
specified in the Offering Documents 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 Fund's
Offering Documents:
(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.
SECTION 7. FEES AND EXPENSES
(a) For the services provided by Forum pursuant to this Agreement, the
Fund, agrees to pay Forum the fees set forth in Clauses (i), (ii), (iii), and
(iv) of Appendix B hereto. Fees will begin to accrue for the 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 the Fund, the Fund shall pay to Forum such
compensation as shall be payable prior to the effective date of termination.
The Fund acknowledges that Forum may from time to time earn money on amounts
in the deposit accounts maintained by Forum to service the Fund (and other
clients serviced by Forum).
(b) In connection with the services provided by Forum pursuant to this
Agreement, the Fund, agrees to reimburse Forum for the expenses set forth in
Appendix B hereto. In addition, the Fund, shall reimburse Forum for all
reasonable incurred expenses and employee time (at 150% of salary)
attributable to any review of the Fund's accounts and records by the Fund's
independent accountants or any regulatory body outside of routine and normal
periodic reviews. Should the Fund exercise its right to terminate this
Agreement, the 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 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 Fund 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 Xxxxxxx 00X xx xxx
0000 Xxx.
(x) The Fund represents and warrants to Forum that:
(i) It is a corporation duly organized and existing and in good
standing under the laws of Maryland;
(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 Fund enforceable against the
Fund 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 Fund and any Classes thereof being offered for
sale.
SECTION 9. PROPRIETARY INFORMATION
(a) The Fund 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 Fund 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 Fund or by a Shareholder in
connection with this Agreement (collectively, "Customer Data") constitute
proprietary information of substantial value to the Fund. In no event shall
Proprietary Information be deemed Customer Data. Forum agrees to treat all
Customer Data as proprietary to the Fund 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 Fund.
SECTION 10. INDEMNIFICATION
(a) Forum shall not be responsible for, and the Fund shall 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 Fund's lack of good faith or the Fund'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 Fund or any other
person or firm on behalf of the Fund, 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 Fund
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 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 Fund for
instructions, and may consult with legal counsel to the Fund 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 Fund 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 Fund, 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 Fund, 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 Fund. 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 Fund, and the proper
countersignature of any former transfer agent or former registrar or of a
co-transfer agent or co-registrar of the Fund.
(d) If the Fund 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 Fund has authorized or in the future may authorize Forum to act
as a "Mutual Fund Services Member" for the Fund. 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 Fund 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 August 15, 2000 or the date on which the Fund'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 Fund. 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 Fund 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 Fund 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 Fund, subcontract for the performance hereof with any entity,
including affiliated persons of Forum; provided however, that Forum shall be
as fully responsible to the Fund for the acts and omissions of any
subcontractor as Forum is for its own acts and omissions.
SECTION 14. FORCE MAJEURE
Forum 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 Director LIABILITY
The Directors of the Fund and the shareholders of the Fund shall not be
liable for any obligations of the Fund 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 Fund to which
Forum's rights or claims relate in settlement of such rights or claims, and
not to the Directors of the Fund 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 the
Fund 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 the other 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 Fund 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 the Fund are separate and distinct
from the assets and liabilities of any 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.
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 COMMON SETTLEMENT II FUND,Inc.
By: /s/XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxxxxx President
FORUM SHAREHOLDER SERVICES, LLC
By: /s/XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx Director
BBH COMMON SETTLEMENT II FUND, INC.
TRANSFER AGENCY AND SERVICE AGREEMENT
Appendix A
BBH Common Settlement II Fund
BBH COMMON SETTLEMENT II FUND,Inc.
By: /s/XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxxxxx President
FORUM SHAREHOLDER SERVICES, LLC
By: /s/XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx Director
BBH COMMON SETTLEMENT II FUND, INC.
TRANSFER AGENCY AND SERVICE AGREEMENT
Appendix B
Fees and Expenses
(i) Base Fee:
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:
BBH Common Settlement II Fund, (the "Fund") Inc. 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 Fund will be reimbursed by the Fund.
(iv) Other Expenses
BBH Common Settlement II Fund, (the "Fund) Inc. shall compensate Forum
for additional procesing 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
occurance
(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.
-2-
BBH COMMON SETTLEMENT FUND II, INC.
ADDENDUM TO TRANSFER AGENCY AND SERVICES AGREEMENT
ADDENDUM, dated as of August 6, 2002, to the Transfer Agency and
Services Agreement dated as of May 10, 2001 (the "Agreement") by and between
BBH Common Settlement Fund II, Inc., a Maryland Corporation, (the "Fund"),
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 Fund 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 Fund 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 Fund's anti-money laundering program and (b)
inspect Forum for purposes of the Fund'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 COMMON SETTLEMENT FUND II, INC.
/s/ Xxxxxxx X. Xxxxxxxx
By: Xxxxxxx X. Xxxxxxxx, President
FORUM SHAREHOLDER SERVICES, LLC
/s/ Xxxx X. Xxxxxxxx
By: Xxxx X. Xxxxxxxx
