Exhibit (e)
DISTRIBUTION AGREEMENT
Distribution Agreement (the "Agreement")
made this 1st day of November 2011, by and between BBH Trust, a Delaware statutory trust (the "Trust") and
ALPS Distributors, Inc., a Colorado corporation (the "Distributor').
WHEREAS, the Trust is a registered open-end management investment
company organized as a series trust offering a number of portfolios of securities (each a "Fund" and collectively, the
"Funds");
WHEREAS, the Trust and Distributor
are party to a Distribution Agreement dated February 1, 2010, its amended October I, 2010, attached hereto as Exhibit A and
incorporated herein by reference (the "Distribution Agreement") whereby the Trust retained the Distributor to promote
and distribute the shares of the Funds.
WHEREAS, on July 19, 2011, ALPS Holdings,
Inc., ("AHI") the parent company of the Distributor, entered into a merger agreement pursuant to which AHI agreed to
be acquired by DST Systems. Inc. (“DSI”) (the "Transaction"): the acquisition also includes an indirect
controlling interest in the Distributor;
WHEREAS, upon completion of the Transaction,
the Transaction may result in an "assignment”, as such term is defined under the Investment Company Act of 1940, as
amended, (tile "1940 Act") of the Distribution Agreement:
WHEREAS, under the 1940 Act, an assignment
includes any direct or indirect transfer of a controlling block of an entity's voting securities and a result of the assignment,
henceforth the Distribution Agreement may he deemed terminated; and
WHEREAS, in light of the proposed assignment
and change in control of the Distributor in connection with the Transaction, the Distributor and Trust wish to enter into this
Agreement effective upon close of the Transaction.
NOW, THEREFORE, in consideration or the mutual promises and
undertakings herein contained, the Trust and the Distributor agree as follows;
| 1. | | Appointment.
The Trust hereby
appoints tile
Distributor to
provide the distribution
services set forth
in the Distribution
Agreement. |
| 2. | | All
terms, conditions.
representations
and warranties
contained in the
Distribution Agreement
are incorporated
herein by reference
and both the Trust
and Distributor
hereby agree that
unless specified
elsewhere in this
Agreement, all
terms, conditions,
representations
and warranties
contained in the
this Agreement,
including the
Distribution Agreement
attached hereto
as Exhibit
A and incorporated
herein by reference,
constitutes the
entire understanding
between the parties
hereto, and supersede
any prior understanding
or agreements
between the parties
related to the
services contemplated
herein, including
the Distribution
Agreement. |
| 3. | | Duration
and Termination.
This Agreement
shall be effective
on the date first
set forth above,
and unless terminated
as provided herein,
shall continue
for two years
from its effective
date. and thereafter
from year to year,
provided such
continuance is
approved annually
by the vote of
a majority of
the Board of Trustees,
and by the vote
of those trustees
who are not “interested
persons”
of the Trust (the
“Independent
Trustees”)
and, if a plan
under Rule 126-1
under the 1940
Act is in effect,
by the vote of
those Trustees
who are not “interested
persons”
of the Trust and
who are not parties
to such plan or
this Agreement
and have no financial
interest in the
operation of such
plan or in any
agreements related
to such plan,
cast in person
at a meeting called
for the |
purpose
of voting on the approval. This Agreement may be terminated at any time. without the payment of any penalty, as to each Fund (i)
by vote of majority of the Independent Trustees or (ii) by vote of a majority (as defined in the 0000 Xxx) or the outstanding
voting securities of the Fund, on at least sixty (60) days prior written notice to the Distributor. In addition, this Agreement
may be terminated at any time by the Distributor upon at least sixty (60) days prior written notice to the Trust. This Agreement
shall automatically terminate in the event of its assignment. As such in this paragraph, the terns "assignment" and
"interested persons" shall have the respective meanings specified in the 1940 Act.
| 4. | | Amendment.
No provision of
this Agreement
may be changed,
waived, discharged
or terminated
except by an instrument
in writing signed
by the party against
which an enforcement
of the change,
waiver, discharge
or termination
is sought. |
| 5. | | Choice
of Law. This
Agreement shall
be governed by,
and construed
and enforced in
accordance with
the laws of the
State of Colorado,
without giving
effect to the
choice of laws
provisions thereof. |
| 6. | | Counterparts.
This Agreement
may be executed
in two or more
counterparts,
each of which
shall be deemed
an original, but
all of which together
shall constitute
one and the same
instrument. |
| 7. | | All
capitalized terns
used but not defined
in this Agreement
shall have the
meanings ascribed
to them in the
Distribution Agreement. |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their officers designated below as of the date first set forth above.
ALPS DISTRIBUTORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name:Xxxxxx X Xxxxxx
Title: President
BBH TRUST
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
Amendment No. 1 to Distribution Agreement
This Amendment No. 1, dated as of October
1, 2010, to the Distribution Agreement (this "Amendment"), by and between BBH Trust, a Delaware statutory trust (the
"Fund"), and ALPS Distributors, Inc., a Colorado corporation, having its principal place of business at 0000 Xxxxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 ("ALPS").
WHEREAS, the Fund and ALPS entered into
a Distribution Agreement (the "Agreement") dated February 1, 2010, pursuant to which the Fund employed the services
of ALPS in connection with the promotion and distribution of shares of the portfolios listed on Appendix A thereto; and
WHEREAS, the Fund and ALPS wish to amend the provisions of the
Agreement to reflect the addition of a new share class for the BBH Core Select.
NOW, THEREFORE, the parties hereby agree to amend the Agreement
as follows:
| 1. | | The parties hereto
agree to delete the current Appendix A to the Agreement
in its entirety and replace it with a new Appendix
A, as attached hereto. |
| 2. | | The parties hereto
agree to delete the current Appendix B to the Agreement
in its entirety and replace it with a new Appendix
B, as attached hereto. |
| 3. | | Except as specifically
set forth herein, all other provisions of the Agreement
shall remain in full force and effect. Any items
not herein defined shall have the meaning ascribed
to them in the Agreement. |
IN WITNESS
WHEREOF, the parties have executed this Amendment as of the day and year first written above.
| BBH TRUST |
ALPS DISTRIBUTORS, LNC. |
| |
|
| By: /s/ Xxxx X. Xxxxxx |
By: /s/ Xxxxxx X. Xxxxxx |
| Name: |
Name: Xxxxxx X. Xxxxxx |
| Title: |
Title: President |
1
APPENDIX A
LIST OF PORTFOLIOS
| BBH Core Select | Class N Shares
Retail Shares |
| BBH International Equity Fund | Class N Shares
Class I Shares |
| BBH Money Market Fund | Regular Shares
Institutional Shares |
| BBH Broad Market Fund | Class N Shares
Class I Shares |
2
APPENDIX B
SERVICES
| • | | Act as legal underwriter/distributor |
| • | | Prepare, update, execute and maintain broker/dealer selling agreements |
| • | | Review/file all marketing materials (including Internet sites) with FINRA |
| • | | Oversee and administer l2b-1 plans (or plans pursuant to any successor rule) |
3
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of February l, 2010, between BBH Trust,
a Delaware statutory trust (the "Fund''), and ALPS Distributors. Inc., a Colorado corporation ("ALPS").
WHEREAS, the Fund is an open-end diversified
investment company registered under the Investment Company Act of 1940, as amended, presently consisting of the portfolios listed
in Appendix A;
WHEREAS, ALPS is registered as a broker-dealer
under the Securities Exchange Act of 1934 (the "1934 Act") and a member of the Financial Industry Regulatory Authority
("FINRA"); and
WHEREAS, the Fund wishes to employ the services of ALPS in connection
with the promotion and distribution of the shares of the Fund (the "Shares").
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein contained, the parties agree as follows.
| 1. | | ALPS
Appointment and
Duties. |
| (a) | | The
Fund
hereby
appoints
ALPS
to
provide
the
distribution
services
set
forth
in
this
Agreement
on
Appendix
B,
as
amended
from
time
to
time,
upon
the
terms
and
conditions
hereinafter
set
forth.
ALPS
hereby
accepts
such
appointment
and
agrees
to
furnish
such
specified
services.
ALPS
shall
for
all
purposes
be
deemed
to
be
an
independent
contractor
and
shall,
except
as
otherwise
expressly
authorized
in
this
Agreement,
have
no
authority
to
act
for
or
represent
the
Fund
in
any
way
or
otherwise
be
deemed
an
agent
of
the
Fund. |
| (b) | | ALPS
may
employ
or
associate
itself
with
a
person
or
persons
or
organizations
as
ALPS
believes
to
be
desirable
in
the
performance
of
its
duties
hereunder;
provided
that,
in
such
event,
the
compensation
of
such
person
or
persons
or
organizations
shall
be
paid
by
and
be
the
sole
responsibility
of
ALPS,
and
the
Fund
shall
bear
no
cost
or
obligation
with
respect
thereto;
and
provided
further
that
ALPS
shall
not
be
relieved
of
any
of
its
obligations
under
this
Agreement
in
such
event
and
shall
be
responsible
for
all
acts
of
any
such
person
or
persons
or
organizations
taken
in
furtherance
of
this
Agreement
to
the
same
extent
it
would
be
for
its
own
acts. |
| 2. | | ALPS
Compensation;
Expenses. |
| (a) | | ALPS
will
bear
all
expenses
in
connection
with
the
performance
of
its
services
under
this
Agreement,
except
as
otherwise
provided
herein.
ALPS
will
not
bear
any
of
the
costs
of
Fund
personnel.
Other
Fund
expenses
incurred
shall
be
borne
by
the
Fund
or
the
Fund's
investment
adviser,
including,
but
not
limited
to,
initial
organization
and
offering
expenses;
the
blue
sky
registration
and
qualification
of
Shares
for
sale
in
the
various
states
in
which
the
officers
of
the
Fund
shall
determine
it
advisable
to
qualify |
such Shares
for sale (including registering the Fund as a broker or dealer or any officer of the Fund as agent or salesman in any state);
litigation expenses; taxes; costs of preferred shares; expenses of conducting repurchase offers for the purpose of repurchasing
Fund shares; administration, transfer agency, and custodial expenses; interest; Fund directors' or trustees' fees; brokerage fees
and commissions; state and federal registration fees; advisory fees; insurance premiums; fidelity bond premiums; Fund and investment
advisory related legal expenses; costs of maintenance of Fund existence; printing and delivery of materials in connection with
meetings of the Fund's directors or trustees; printing and mailing of shareholder reports, prospectuses, statements of additional
information, other offering documents and supplements, proxy materials, and other communications to shareholders; securities pricing
data and expenses in connection with electronic filings with the U.S. Securities and Exchange Commission (the "SEC'').
| 3. | | Documents.
The
Fund
has
furnished
or
will
furnish,
upon
request,
ALPS
with
copies
of
the
Fund's
Declaration
of
Trust,
advisory
agreement,
custodian
agreement,
transfer
agency
agreement;
administration
agreement,
current
prospectus,
statement
of
additional
information,
periodic
Fund
reports,
and
all
forms
relating
to
any
plan,
program
or
service
offered
by
the
Fund.
The
Fund
shall
furnish,
within
a
reasonable
time
period,
to
ALPS
a
copy
of
any
amendment
or
supplement
to
any
of
the
above-mentioned
documents.
Upon
request,
the
Fund
shall
furnish
promptly
to
ALPS
any
additional
documents
necessary
or
advisable
to
perform
its
functions
hereunder.
As
used
in
this
Agreement
the
terms
"registration
statement;"
"prospectus"
and
"statement
of
additional
information"
shall
mean
any
registration
statement,
prospectus
and
statement
of
additional
information
filed
by
the
Fund
with
the
SEC
and
any
amendments
and
supplements
thereto
that
are
filed
with
the
SEC. |
| (a) | | The
Fund
grants
to
ALPS
the
right
to
sell
the
Shares
as
agent
on
behalf
of
the
Fund,
during
the
term
of
this
Agreement,
subject
to
the
registration
requirements
of
the
Securities
Act
of
1933,
as
amended
(the
"1933
Act");
the
Investment
Company
Act
of
1940,
as
amended
(the
"1940
Act''),
and
of
the
laws
governing
the
sale
of
securities
in
the
various
states
("Blue
Sky
Laws"),
under
the
terms
and
conditions
set
forth
in
this
Agreement.
ALPS
shall
have
the
right
to
sell,
as
agent
on
behalf
of
the
Fund,
the
Shares
covered
by
the
registration
statement,
prospectus
and
statement
of
additional
information
for
the
Fund
then
in
effect
under
the
1933
Act
and
1940
Act. |
| (b) | | The
rights
granted
to
ALPS
shall
be
exclusive,
except
that
the
Fund
reserves
the
right
to
sell
Shares
directly
to
investors
on
applications
received
and
accepted
by
the
Fund. |
| (c) | | Except
as
otherwise
noted
in
the
Fund's
current
prospectus
and/or
statement
of
additional
information,
all
Shares
sold
to
investors
by
ALPS
or
the
Fund
will
be
sold
at
the
public
offering
price.
The
public
offering
price
for
all
accepted
subscriptions
will
be
the
net
asset
value
per
Share,
as
determined
in
the
manner
described
in
the
Fund's
current
prospectus
and/or
statement
of
additional
information. |
| (d) | | The
Fund
shall
receive
the
net
asset
value
per
Share
on
all
sales.
If
a
fee
in
connection
with
shareholder
redemptions
is
in
effect,
such
fee
will
be
paid
to
the
Fund.
The
net
asset
value
of
the
Shares
will
be
calculated
by
the
Fund
or
by
another
entity
on
behalf
of
the
Fund.
ALPS
has
no
duty
to
inquire
into,
or
liability
for,
the
accuracy
of
the
net
asset
value
per
Share
as
calculated. |
| (e) | | The
Fund
reserves
the
right
to
suspend
sales
and
ALPS'
authority
to
process
orders
for
Shares
on
behalf
of
the
Fund
if
in
the
judgment
of
the
Fund,
it
is
in
the
best
interests
of
the
Fund
to
do
so.
Suspension
will
continue
for
such
period
as
may
be
determined
by
the
Fund. |
| (f) | | In
consideration
of
these
rights
granted
to
ALPS,
ALPS
agrees
to
use
its
best
efforts
to
solicit
orders
for
the
sale
of
the
Shares
at
the
public
offering
price
and
will
undertake
such
advertising
and
promotion
as
it
believes
is
reasonable
in
connection
with
such
solicitation.
ALPS
shall
review
and
file
such
materials
with
the
SEC
and/or
FINRA
to
the
extent
required
by
the
1934
Act
and
the
1940
Act
and
the
rules
and
regulations
thereunder,
and
by
the
rules
of
FINRA.
This
shall
not
prevent
ALPS
from
entering
into
like
arrangements
(including
arrangements
involving
the
payment
of
underwriting
commissions)
with
other
issuers.
ALPS
will
act
only
on
its
own
behalf
as
principal
should
it
choose
to
enter
into
selling
agreements
with
selected
dealers
or
others. |
| (g) | | ALPS
is
not
authorized
by
the
Fund
to
give
any
information
or
to
make
any
representations
other
than
those
contained
in
the
registration
statement
or
prospectus
and
statement
of
additional
information,
or
contained
in
shareholder
reports
or
other
material
that
may
be
prepared
by
or
on
behalf
of
the
Fund
for
ALPS'
use.
Consistent
with
the
foregoing,
ALPS
may
prepare
and
distribute
sales
literature
or
other
material
as
it
may
deem
appropriate
in
consultation
with
the
Fund,
provided
such
sales
literature
complies
with
applicable
law
and
regulations. |
| (h) | | The
Fund agrees that
it will take
all action necessary
to register the
Shares under
the 1933 Act
and the 1940
Act (subject
to the necessary
approval of its
shareholders).
The Fund shall
make available
to ALPS, at ALPS'
expense, such
number of copies
of its prospectus,
statement of
additional information,
and periodic
reports as ALPS
may reasonably
request. The
Fund shall furnish
to ALPS copies
of all information,
financial statements
and other papers,
which ALPS may
reasonably request
for use in connection
with the distribution
of Shares of
the Fund. |
| (i) | | The
Fund
agrees
to
execute
any
and
all
documents
and
to
furnish
any
and
all
information
and
otherwise
to
take
all
actions
that
may
be
reasonably
necessary
in
connection
with
the
qualification
of
the
Shares
for
sale
in
such
states
as
ALPS
may
designate.
The
Fund
must
notify
ALPS
in
writing
of
the
states
in
which
the
Shares
may
be
sold
and
must
notify
ALPS
in
writing
of
any
changes
to
the
information
contained
in
the
previous
notification. |
| (j) | | The
Fund
shall
not
use
the
name
of
ALPS or
any
of
its
affiliates,
in
any
prospectus
or
statement
of
additional
information;
sales
literature,
and
other
material
relating
to
the
Fund
in
any
manner
without
the
prior
written
consent
of
ALPS
(which
shall
not
be
unreasonably
withheld);
provided,
however,
that
ALPS
hereby
approves
all
lawful
uses
of
the
names
of
ALPS
and
its
affiliates
in
the
prospectus
and
statement
of
additional
information
of
the
Fund
and
in
all
other
materials
which
merely
refer
in
accurate
terms
to
its
appointment
hereunder
or
which
are
required
by
the
SEC,
FINRA,
OCC
or
any
state
securities
authority. |
| (k) | | Neither
ALPS
nor
any
of
its
affiliates
shall
use
the
name
of
the
Fund
in
any
publicly
disseminated
materials,
including
sales
literature,
in
any
manner
without
the
prior
written
consent
of
the
Fund
(which
shall
not
be
unreasonably
withheld);
provided,
however,
that
the
Fund
hereby
approves
all
lawful
uses
of
its
name
in
any
required
regulatory
filings
of
ALPS
which
merely
refer
in
accurate
terms
to
the
appointment
of
ALPS
hereunder,
or
which
are
required
by
the
SEC,
FINRA,
OCC
or
any
state
securities
authority. |
| (l) | | ALPS
will
promptly
transmit
any
orders
received
by
it
for
purchase,
redemption,
or
exchange
of
the
Shares
to
the
Fund's
transfer
agent. |
| (m) | | The
Fund
agrees
to
issue
Shares
of
the
Fund
and
to
request
[The
Depository
Trust
Company]
to
record
on
its
books
the
ownership
of
such
Shares
in
accordance
with
the
book-entry
system
procedures
described
in
the
prospectus
in
such
amounts
as
ALPS
has
requested
through
the
transfer
agent
in
writing
or
other
means
of
data
transmission,
as
promptly
as
practicable
after
receipt
by
the
Fund
of
the
requisite
deposit
securities
and
cash
component
(together
with
any
fees)
and
acceptance
of
such
order,
upon
the
terms
described
in
the
Registration
Statement. |
| (n) | | The
Fund
agrees
that
it
will
take
all
action
necessary
to
register
an
indefinite
number
of
Shares
under
the
0000
Xxx.
The
Fund
shall
make
available
to
ALPS,
at
ALPS'
expense,
such
number
of
copies
of
its
prospectus,
statement
of
additional
information,
and
periodic
reports
as
ALPS
may
reasonably
request.
The
Fund
will
furnish
to
ALPS
copies
of
all
information,
financial
statements
and
other
papers,
which
ALPS
may
reasonably
request. |
| (o) | | The
Fund
agrees
to
execute
any
and
all
documents
and
to
furnish
any
and
all
information
and
otherwise
to
take
all
actions
that
may
be
reasonably
necessary
in
connection
with
the
qualification
of
the
Shares
for
sale
in
such
states
as
ALPS
may
designate.
The
Fund
will
keep
ALPS
informed
of
the
jurisdictions
in
which
Shares
of
the
Fund
are
authorized
for
sale
and
shall
promptly
notify
ALPS
of
any
change
in
this
information. |
| 5. | | Insurance.
ALPS
agrees
to
maintain
fidelity
bond
and
liability
insurance
coverages
which
are,
in
scope
and
amount,
consistent
with
coverages
customary
for
distribution
activities
relating
to
the
Fund.
ALPS
shall
notify
the
Fund
upon
receipt
of
any
notice
of
material,
adverse
change
in
the
terms
or
provisions
of
its
insurance
coverage.
Such
notification
shall |
include
the date of change and the reason or reasons therefor. ALPS shall notify the Fund of any material claims against it, whether or
not covered by insurance, and shall notify the Fund from time to time as may be appropriate of the total outstanding claims made
by it under its insurance coverage.
| 6. | | Right
to
Receive
Advice. |
| (a) | | Advice
of
the
Fund
and
Service
Providers.
If
ALPS
is
in
doubt
as
to
any
action
it
should
or
should
not
take,
ALPS
may
request
directions,
advice,
or
instructions
from
the
Fund
or,
as
applicable,
the
Fund's
investment
adviser,
custodian,
or
other
service
providers. |
| (b) | | Advice
of
Counsel.
If
ALPS
is
in
doubt
as
to
any
question
of
law
pertaining
to
any
action
it
should
or
should
not
take,
ALPS
may
request
advice
from
counsel
of
its
own
choosing
(who
may
be
counsel
for
the
Fund,
the
Fund's
investment
adviser,
or
ALPS,
at
the
option
of
ALPS). |
| (c) | | Conflicting
Advice.
In
the
event
of
a
conflict
between
directions,
advice
or
instructions
ALPS
receives
from
the
Fund
or
any
service
provider
and
the
advice
ALPS
receives
from
counsel,
ALPS
may
in
its
sole
discretion
rely
upon
and
follow
the
advice
of
counsel.
ALPS
will
provide
the
Fund
with
prior
written
notice
of
its
intent
to
follow
advice
of
counsel
that
is
materially
inconsistent
with
directions,
advice
or
instructions
from
the
Fund.
Upon
request,
ALPS
will
provide
the
Fund
with
a
copy
of
such
advice
of
counsel
received
pursuant
to
Section
6(b). |
| 7. | | Standard
of Care: Limitation
of Liability:
Indemnification. |
| (a) | | ALPS
shall
be
obligated
to
act
in
good
faith
and
to
exercise
commercially
reasonable
care
and
diligence
in
the
performance
of
its
duties
under
this
Agreement. |
| (b) | | In
the
absence
of
willful
misfeasance,
bad
faith,
negligence,
or
reckless
disregard
by
ALPS
in
the
performance
of
its
duties,
obligations,
or
responsibilities
set
forth
in
this
Agreement,
ALPS
and
its
affiliates,
including
their
respective
officers,
directors,
agents,
and
employees,
shall
not
be
liable
for,
and
the
Fund
agrees
to
indemnify,
defend
and
hold
harmless
such
persons
from,
all
taxes,
charges,
expenses,
assessments,
claims,
and
liabilities
(including,
without
limitation,
attorneys'
fees
and
disbursements
and
liabilities
arising
under
applicable
federal
and
state
laws)
arising
directly
or
indirectly
from
the
following: |
| (i) | | the
inaccuracy
of
factual
information
furnished
to
ALPS
by
the
Fund
or
the
Fund's
investment
adviser,
custodians,
or
any
authorized
third
party
on
behalf
of
the
Fund; |
| (ii) | | any
untrue
statement
of
a
material
fact
or
omission
of
a
material
fact
required
to
be
stated
or
necessary
in
order
to
make
the
statements
not
misleading
under
the
1933
Act,
the
1940
Act,
or
any
other
statute
or
the
common
law,
in
any
registration
statement,
prospectus,
statement
of
additional
information, |
shareholder
report, or other information filed or made public by the Fund (as amended from time to time), except to the extent the statement
or omission was made in reliance upon, and in conformity with, information furnished to the Fund or its counsel by or on behalf
of ALPS;
| (iii) | | any
reasonable
error
of
judgment
or
mistake
of
law
or
for
any
loss
suffered
by
the
Fund
in
connection
with
the
matters
to
which
this
Agreement
relates; |
| (iv) | | losses,
delays,
failure,
errors,
interruption
or
loss
of
data
occurring
directly
or
indirectly
by
reason
of
circumstances
beyond
its
reasonable
control,
including
without
limitation,
acts
of
God,
action
or
inaction
of
civil
or
military
authority,
war,
terrorism,
riot,
fire,
flood,
sabotage,
labor
disputes,
elements
of
nature,
or
non-performance
by
a
third
party; |
| (v) | | ALPS'
reliance
on
any
instruction,
direction,
notice,
instrument
or
other
information
provided
by
the
Fund,
the
Fund's
investment
adviser
or
custodians
or
any
authorized
third
party
on
behalf
of
the
Fund
that
ALPS
reasonably
believes
to
be
genuine; |
| (vi) | | loss
of
data
or
service
interruptions
caused
by
equipment
failure;
or |
| (vii) | | any
other
action
or
omission
to
act
which
ALPS
takes
in
connection
with
the
provision
of
services
to
the
Fund. |
| (c) | | ALPS
shall
indemnify
and
hold
harmless
the
Fund,
the
Fund's
investment
adviser
and
their
respective
officers,
directors,
agents,
and
employees
from
and
against
any
and
all
taxes,
charges,
expenses,
assessments,
claims,
and
liabilities
(including,
without
limitation,
attorneys'
fees
and
disbursements
and
liabilities
arising
under
applicable
federal
and
state
laws)
arising
directly
or
indirectly
from
ALPS'
willful
misfeasance,
bad
faith,
negligence,
or
reckless
disregard
in
the
performance
of
its
duties,
obligations,
or
responsibilities
set
forth
in
this
Agreement. |
| (d) | | Notwithstanding
anything
in
this
Agreement
to
the
contrary,
neither
party
shall
be
liable
under
this
Agreement
to
the
other
party
hereto
for
any
punitive,
consequential,
special
or
indirect
losses
or
damages.
Any
indemnification
payable
by
a
party
to
this
Agreement
shall
be
net
of
insurance
maintained
by
the
indemnified
party
as
of
the
time
the
claim
giving
rise
to
indemnity
hereunder
is
alleged
to
have
arisen
to
the
extent
it
covers
such
claim. |
| (e) | | In
any
case
in
which
either
party
(the
"Indemnifying
Party'')
may
be
asked
to
indemnify
or
hold
the
other
party
(the
"Indemnified
Party")
harmless,
the
Indemnified
Party
will
notify
the
Indemnifying
Party
promptly
after
identifying
any
situation
which
it
believes
presents
or
appears
likely
to
present
a
claim
for
indemnification
against
the
Indemnifying
Party
although
the
failure
to
do
so
shall
not
prevent
recovery
by
the
Indemnified
Party
and
shall
keep
the
Indemnifying
Party
advised
with
respect
to
all
developments
concerning
such
situation.
The |
Indemnifying
Party shall have the option to defend the Indemnified Party against any claim which may be the subject of this indemnification,
and, in the event that the Indemnifying Party so elects, such defense shall be conducted by counsel chosen by the Indemnifying
Party and reasonably satisfactory to the Indemnified Party, and thereupon the Indemnifying Party shall take over complete defense
of the claim and the Indemnified Party shall sustain no further legal or other expenses in respect of such claim. The Indemnified
Party will not confess any claim or make any compromise in any case in which the Indemnifying Party will be asked to provide indemnification,
except with the Indemnifying Party's prior written consent.
| 8. | | Activities
of
ALPS.
The
services
of
ALPS
under
this
Agreement
are
not
to
be
deemed
exclusive,
and
ALPS
shall
be
free
to
render
similar
services
to
others.
The
Fund
recognizes
that
from
time
to
time
directors,
officers
and
employees
of
ALPS
may
serve
as
directors,
officers
and
employees
of
other
corporations
or
businesses
(including
other
investment
companies)
and
that
such
other
corporations
and
businesses
may
include
ALPS
as
part
of
their
name
and
that
ALPS
or
its
affiliates
may
enter
into
distribution
agreements
or
other
agreements
with
such
other
corporations
and
businesses. |
| 9. | | Accounts
and Records. The accounts and records maintained by ALPS shall be the property of the Fund. ALPS shall prepare, maintain and
preserve such accounts and records as required by the 1940 Act and other applicable securities laws, rules and regulations. ALPS
shall surrender such accounts and records to the Fund, in the form in which such accounts and records have been maintained or
preserved, promptly upon receipt of instructions from the Fund. The Fund shall have access to such accounts and records at all
times during ALPS' normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall
be provided by ALPS to the Fund at the Fund's expense. ALPS shall assist the Fund, the Fund's independent auditors, or, upon approval
of the Fund, any regulatory body, in any requested review of the Fund's accounts and records, and reports by ALPS or its independent
accountants concerning its accounting system and internal auditing controls will be open to such entities for audit or inspection
upon reasonable request. In the event that ALPS receives a request or demand for the inspection of records relating specifically
to the Fund, ALPS will promptly notify the Fund of such request in writing and obtain instructions from the Fund as to the handling
of such request. |
| 10. | | Confidential
and
Proprietary
Information.
In
accordance
with
Regulation
S-P
and
other
relevant
rules
and
regulations,
ALPS
agrees
that
it
will,
on
behalf
of
itself
and
its
officers
and
employees,
treat
all
transactions
contemplated
by
this
Agreement,
and
all
records
and
information
relative
to
the
Fund
and
its
current
and
former
shareholders
and
other
information
germane
thereto,
as
confidential
and
as
proprietary
information
of
the
Fund
and
not
to
use,
sell,
transfer,
or
divulge
such
information
or
records
to
any
person
for
any
purpose
other
than
performance
of
its
duties
hereunder,
except
after
prior
notification
to
and
approval
in
writing
from
the
Fund,
which
approval
shall
not
be
unreasonably
withheld.
Approval
may
not
be
withheld
where
ALPS
may
be
exposed
to
civil,
regulatory,
or
criminal
proceedings
for
failure
to
comply,
when
requested
to
divulge
such
information
by
duly
constituted
authorities,
or
when
requested
by
the
Fund.
When
requested
to
divulge |
such information
by duly constituted authorities, ALPS shall use reasonable commercial efforts to request confidential treatment of such information.
ALPS shall have in place and maintain physical, electronic, and procedural safeguards reasonably designed to protect the security,
confidentiality, and integrity of, and to prevent unauthorized access to or use of records and information relating to the Fund
and its current and former shareholders.
| 11. | | Compliance
with
Rules
and
Regulations.
ALPS
shall
comply
(and
to
the
extent
ALPS
takes
or
is
required
to
take
action
on
behalf
of
the
Fund
hereunder
shall
cause
the
Fund
to
comply)
with
all
applicable
requirements
of
the
1940
Act
and
other
applicable
laws,
rules,
regulations,
orders
and
code
of
ethics,
as
well
as
all
investment
restrictions,
policies
and
procedures
adopted
by
the
Fund
of
which
ALPS
has
knowledge
(it
being
understood
that
ALPS
is
deemed
to
have
knowledge
of
all
investment
restrictions,
policies
or
procedures
set
out
in
the
Fund's
public
filings
or
otherwise
provided
to
ALPS).
Except
as
set
out
in
this
Agreement,
ALPS
assumes
no
responsibility
for
such
compliance
by
the
Fund.
ALPS
shall
maintain
at
all
times
a
program
reasonably
designed
to
prevent
violations
of
the
federal
securities
laws
(as
defined
in
Rule
38a-1
under
the
0000
Xxx)
with
respect
to
the
services
provided,
and
shall
provide
to
the
Fund
a
certification
to
such
effect
no
less
than
annually
or
as
otherwise
reasonably
requested
by
the
Fund.
ALPS
shall
make
available
its
compliance
personnel
and
shall
provide
at
its
own
expense
summaries
and
other
relevant
materials
relating
to
such
program
as
reasonably
requested
by
the
Fund. |
| 12. | | Representations
and
Warranties
of
ALPS.
ALPS
represents
and
warrants
to
the
Fund
that: |
| (a) | | It
is
duly
organized
and
existing
as
a
corporation
and
in
good
standing
under
the
laws
of
the
State
of
Colorado. |
| (b) | | It
is
empowered
under
applicable
laws
and
by
its
Articles
of
Incorporation
and
By-laws
to
enter
into
and
perform
this
Agreement. |
| (c) | | All
requisite
corporate
proceedings
have
been
taken
to
authorize
it
to
enter
into
and
perform
this
Agreement. |
| (d) | | It
has
and
will
continue
to
have
access
to
the
necessary
facilities,
equipment
and
personnel
to
perform
its
duties
and
obligations
under
this
Agreement
in
accordance
with
industry
standards. |
| (e) | | ALPS
has
conducted
a
review
of
its
supervisory
controls
system
and
has
made
available
to
the
Fund
the
most
current
report
of
such
review
and
any
updates
thereto.
Every
time
ALPS
conducts
a
review
of
its
supervisory
control
system
it
will
make
available
to
the
Fund
for
inspection
a
report
of
such
review
and
any
updates
thereto.
ALPS
shall
immediately
notify
the
Fund
of
any
changes
in
how
it
conducts
its
business
that
would
materially
change
the
results
of
its
most
recent
review
of
its
supervisory
controls
system
and
any
other
changes
to
ALPS'
business
that
would
affect
the
business
of
the
Fund
or
the
Fund's
investment
adviser. |
| 13. | | Representations
and Warranties
of the Fund.
The Fund represents
and warrants
to ALPS that: |
| (a) | | It is a trust duly organized and existing and
in good standing under the laws of the state of Delaware and is
registered with the SEC as an open-end, registered investment company. |
| (b) | | It
is
empowered
under
applicable
laws
and
by
its
Declaration
of
Trust
and
By-laws
to
enter
into
and
perform
this
Agreement. |
| (c) | | The
Board
of
Trustees
of
the
Fund
has
duly
authorized
it
to
enter
into
and
perform
this
Agreement. |
| (d) | | Notwithstanding
anything
in
this
Agreement
to
the
contrary,
the
Fund
agrees
not
to
make
any
modifications
to
its
registration
statement
or
adopt
any
policies
which
would
affect
materially
the
obligations
or
responsibilities
of
ALPS
hereunder
without
the
prior
written
approval
of
ALPS,
which
approval
shall
not
be
unreasonably
withheld
or
delayed. |
| 14. | | Consultation
Between
the
Parties.
ALPS
and
the
Fund
shall
regularly
consult
with
each
other
regarding
ALPS'
performance
of
its
obligations
under
this
Agreement.
In
connection
therewith,
the
Fund
shall
submit
to
ALPS
at
a
reasonable
time
in
advance
of
filing
with
the
SEC
reasonably
final
copies
of
any
amended
or
supplemented
registration
statement
(including
exhibits)
under
the
1933
Act
and
the
1940
Act;
provided,
however,
that
nothing
contained
in
this
Agreement
shall
in
any
way
limit
the
Fund's
right
to
file
at
any
time
such
amendments
to
any
registration
statement
and/or
supplements
to
any
prospectus
or
statement
of
additional
information,
of
whatever
character,
as
the
Fund
may
deem
advisable,
such
right
being
in
all
respects
absolute
and
unconditional. |
| 15. | | Anti-Money
Laundering.
ALPS
agrees
to
maintain
an
anti-money
laundering
program
in
compliance
with
Title
III
of
the
Uniting
and
Strengthening
America
by
Providing
Appropriate
Tools
Required
to
Intercept
and
Obstruct
Terrorism
Act
of
2001
(the
"USA
Patriot
Act")
and
all
applicable
laws
and
regulations
promulgated
thereunder.
ALPS
confirms
that,
as
soon
as
possible,
following
the
request
from
the
Fund,
ALPS
will
supply
the
Fund
with
copies
of
ALPS'
anti-money
laundering
policy
and
procedures,
and
such
other
relevant
certifications
and
representations
regarding
such
policy
and
procedures
as
the
Fund
may
reasonably
request
from
time
to
time.
ALPS
will
notify
the
Fund
promptly
if
an
inspection
by
the
appropriate
regulatory
authorities
of
its
AML
Program
identifies
any
material
deficiency,
and
will
promptly
remedy
any
material
deficiency
of
with
it
learns. |
| 16. | | Business
Interruption
Plan.
ALPS
shall
maintain
in
effect
a
business
interruption
plan,
and
enter
into
any
agreements
necessary
with
appropriate
parties
making
reasonable
provisions
for
emergency
use
of
electronic
data
processing
equipment
customary
in
the
industry.
In
the
event
of
equipment
failures,
ALPS
shall,
at
no
additional
expense
to
the
Fund,
take
commercially
reasonable
steps
to
minimize
service
interruptions. |
| 17. | | Duration
and
Termination
of
this
Agreement. |
| (a) | | Initial
Term.
This
Agreement
shall
become
effective
as
of
the
date
first
written
above
(the
"Start
Date")
and
shall
continue
thereafter
throughout
the
period
that
ends
two
(2)
years
after
the
Start
Date
(the
"Initial
Term"). |
| (b) | | Renewal
Term.
If
not
sooner
terminated,
this
Agreement
shall
renew
at
the
end
of
the
Initial
Term
and
shall
thereafter
continue
for
successive
annual
periods,
provided
such
continuance
is
specifically
approved
at
least
annually
(i)
by
the
Fund's
Board
of
Trustees
or
(ii)
by
a
vote
of
a
majority
of
the
outstanding
voting
securities
of
the
relevant
portfolio
of
the
Fund,
provided
that
in
either
event
the
continuance
is
also
approved
by
the
majority
of
the
[Trustees/Directors]
of
the
Fund
who
are
not
interested
persons
(as
defined
in
the
0000
Xxx)
of
any
party
to
this
Agreement
by
vote
cast
in
person
at
a
meeting
called
for
the
purpose
of
voting
on
such
approval.
If
a
plan
under
Rule
l2b-1
of
the
1940
Act
is
in
effect,
continuance
of
the
plan
and
this
Agreement
must
be
approved
at
least
annually
by
a
majority
of
the
Trustees
of
the
Fund
who
are
not
interested
persons
(as
defined
in
the
0000
Xxx)
and
have
no
financial
interest
in
the
operation
of
such
plan
or
in
any
agreements
related
to
such
plan,
cast
in
person
at
a
meeting
called
for
the
purpose
of
voting
on
such
approval. |
| (c) | | This
Agreement
is
terminable
without
penalty
on
sixty
(60)
days'
written
notice
by
the
Fund's
Board
of
Trustees,
by
vote
of
the
holders
of
a
majority
of
the
outstanding
voting
securities
of
the
relevant
portfolio
of
the
Fund,
or
by
ALPS. |
| (d) | | Deliveries
Upon
Termination.
Upon
termination
of
this
Agreement,
ALPS
agrees
to
cooperate
in
the
orderly
transfer
of
distribution
duties
and
shall
deliver
to
the
Fund
or
as
otherwise
directed
by
the
Fund
(at
the
expense
of
the
Fund)
all
records
and
other
documents
made
or
accumulated
in
the
performance
of
its
duties
for
the
Fund
hereunder.
In
the
event
ALPS
gives
notice
of
termination
under
this
Agreement,
it
will
continue
to
provide
the
services
contemplated
hereunder
after
such
termination
at
the
contractual
rate
for
up
to
120
days,
provided
that
the
Fund
uses
all
reasonable
commercial
efforts
to
appoint
such
replacement
on
a
timely
basis. |
| 18 | | Assignment.
This
Agreement
will
automatically
terminate
in
the
event
of
its
assignment
(as
defined
in
the
1940
Act). |
| 19. | | Governing
Law.
The
provisions
of
this
Agreement
shall
be
construed
and
interpreted
in
accordance
with
the
laws
of
the
State
of
Colorado
and
the
1940
Act
and
the
rules
thereunder.
To
the
extent
that
the
laws
of
the
State
of
Colorado
conflict
with
the
1940
Act
or
such
rules,
the
latter
shall
control. |
| 20. | | Names.
The
obligations
of
the
Fund
entered
into
in
the
name
or
on
behalf
thereof
by
any
director,
shareholder,
representative;
or
agent
thereof
are
made
not
individually,
but
in
such
capacities,
and
are
not
binding
upon
any
of
the
directors,
shareholders,
representatives
or
agents
of
the
Fund
personally,
but
bind
only
the
property
of
the
Fund,
and
all
persons
dealing
with
the
Fund
must
look
solely
to
the
property
of
the
Fund
for
the
enforcement
of
any
claims
against
the
Fund. |
| 21. | | Amendments
to
this
Agreement.
This
Agreement
may
only
be
amended
by
the
parties
in
writing. |
| 22. | | Notices.
All
notices
and
other
communications
hereunder
shall
be
in
writing,
shall
be
deemed
to
have
been
given
when
received
or
when
sent
by
telex
or
facsimile,
and
shall
be
given
to
the
following
addresses
(or
such
other
addresses
as
to
which
notice
is
given): |
To ALPS:
ALPS Distributors, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
To the Fund:
BBH Trust
c/o Brown Brothers Xxxxxxxx & Co.
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
| 24. | | Counterparts.
This
Agreement
may
be
executed
by
the
parties
hereto
on
any
number
of
counterparts,
and
all
of
said
counterparts
taken
together
shall
be
deemed
to
constitute
one
and
the
same
instrument. |
| 25 | | Entire
Agreement.
This
Agreement
embodies
the
entire
agreement
and
understanding
among
the
parties
and
supersedes
all
prior
agreements
and
understandings
relating
to
the
subject
matter
hereof,
provided,
however,
that
ALPS
may
embody
in
one
or
more
separate
documents
its
agreement,
if
any,
with
respect
to
delegated
duties
and
oral
instructions. |
| 26. | | Severability.
If
any
provision
or
provisions
of
this
Agreement
shall
be
held
invalid,
unlawful,
or
unenforceable,
the
validity,
legality
and
enforceability
of
the
remaining
provisions
shall
not
in
any
way
be
affected
or
impaired. |
| 27. | | Non-Recourse.
The parties hereby
acknowledge that
the Fund is a
registered investment
company with
multiple portfolio
series (each
a "Portfolio")
and hereby agree
that any obligation
of a Portfolio
under this Agreement
is enforceable
solely against
that Portfolio
and its properties
and assets and
that no other
Portfolio shall
have responsibility
therefore and
that, in no event,
shall any officer,
Trustee, or shareholder
of the Fund or
a Portfolio have
any personal
liability for
any obligation
of the Fund or
a Portfolio under
this Agreement
and that ALPS
shall have no
claim against
any officer,
Trustee or shareholder
of the Fund or
a Portfolio arising
out of any obligation
of the Fund or
a Portfolio under
this Agreement. |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
BBH TRUST
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
ALPS DISTRIBUTORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
APPENDIX A
LIST OF PORTFOLIOS
| BBH Core Select | Class N Shares |
| | |
| BBH International Equity Fund | Class
N Shares
Class I Shares |
| | |
| BBH Money Market Shares | Regular Shares Institutional
Shares |
| | |
| BBH Broad Market Fund | Class N Shares
Class I Shares |
APPENDIX B
SERVICES
| • | | Act
as
legal
underwriter/distributor |
| • | | Prepare,
update,
execute
and
maintain
broker/dealer
selling
agreements |
| • | | Review/file
all
marketing
materials
(including
Internet
sites)
with
FINRA |
