Exhibit (h)(5) under Form N-1A
Exhibit 10 under 601/Reg S-K
ACCOUNTING AGENCY AGREEMENT
THIS ACCOUNTING AGENCY AGREEMENT is made as of March 12,
2001 and amended and restated as of August 4, 2003, by and among,
severally and not jointly, XXXXX BROTHERS XXXXXXXX & CO., a
limited partnership organized under the laws of the State of New
York (the "BBH"), BBH FUND, INC., BBH TRUST, and BBH U.S. MONEY
MARKET PORTFOLIO on behalf of each of their series (each a "Fund"
and collectively the "Funds").
WHEREAS, the Funds are registered as management investment
companies under the Investment Company Act of 1940, as amended
(the "1940 Act'); and
WHEREAS, the Funds desire to retain BBH to perform certain
accounting and recordkeeping services on behalf of the Funds, and
BBH is willing to render such services.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
1. Employment of BBH. The Funds hereby employ and appoint
BBH to act as fund accounting agent on the terms set forth in
this Agreement, and BBH accepts such appointment.
2. Delivery of Documents. The Fund will (i) furnish BBH
with properly certified or authenticated copies of resolutions of
the Fund's Board of Directors or Trustees authorizing the
appointment of BBH to provide certain fund accounting services to
the Fund and approving this Agreement; (ii) provide BBH with any
other documents of resolutions (including but not limited to
directions or resolutions of the Fund's Board of Directors or
Trustees) which relate to or affect BBH's performance of its
duties hereunder or which BBH may reasonably request; and (iii)
notify BBH promptly of any matter affecting the performance by
BBH of its services under this Agreement.
3. Recordkeeping and Calculation of Net Asset Value. BBH
shall compute and determine the net asset value per share of the
Fund as of the close of business on the New York Stock Exchange
on each day on which such Exchange is open, unless otherwise
directed by Proper Instructions. Such computation and
determination shall be made in accordance with (1) the provisions
of the Fund's Declaration of Trust or Certificate of
Incorporation and By-Laws, as they
may from time to time be amended and delivered to BBH, (2) to
votes of the Board of Trustees or Directors of the Fund at the
time in force and applicable, as they may from time to time be
delivered to BBH, and (3) Proper Instructions. On each day that
BBH shall compute the net asset value per share of the Fund, BBH
shall verify that portfolio transactions have been recorded in
accordance with the Fund's instructions and are reconciled with
the Fund's trading records.
In computing the net asset value, BBH shall rely upon
information (1) as to accrual of liabilities of the Fund and as
to liabilities of the Fund not appearing on the books of account
kept by BBH, (2) as to the existence, status and proper treatment
of reserves, if any, authorized by the Fund, (3) as to
commercially reasonable sources of quotations to be used in
computing the net asset value, (4) as to the fair value to be
assigned to any securities or other property for which price
quotations are not readily available, and (5) as to the sources
of information with respect to "corporate actions" affecting
portfolio securities of the Fund, (Information as to "corporate
actions" shall include information as to dividends,
distributions, stock splits, stock dividends, rights offerings,
conversions, exchanges, recapitalizations, mergers, redemptions,
calls, maturity dates and similar transactions, including the ex-
and record dates and the amounts or other terms thereof). In the
exercise of its duties under this paragraph 3, BBH is authorized
to use the Authorized Sources set forth in Appendix A to this
Agreement.
4. Expenses and Compensation. For the services to be
rendered and the facilities to be furnished by BBH as provided
for in this Agreement, the Fund shall pay BBH for its services
rendered pursuant to this Agreement a fee based on such fee
schedule as may from time to time be agreed upon in writing by
the Fund and BBH. In addition to such fee, BBH shall xxxx the
Fund separately for any out-of-pocket disbursements of BBH.
Out-of-pocket disbursements shall include, but shall not be
limited to, postage, including courier services; telephone;
telecommunications; printing, duplicating and photocopying
charges; forms and supplies; filing fees; legal expenses; and
travel expenses. The foregoing fees and disbursements shall be
billed to the Fund by BBH and shall be paid promptly by wire
transfer or other appropriate means to BBH.
5. Standard of Care. BBH shall be held only to the
exercise of reasonable care in computing and determining net
asset value as provided in this Agreement, but shall not be held
accountable or liable for any losses or damages the Fund or any
shareholder or former shareholder of the Fund or any other person
may suffer or incur arising from or based upon errors or delays
in the determination of such net asset value resulting from any
event beyond the reasonable control of BBH unless such error or
delay was due to BBH's negligence or reckless or willful
misconduct in determination of such net asset value. (The parties
hereto acknowledge, however, that BBH's causing an error or delay
in the determination of net asset value may, but does not in and
of itself, constitute negligence or reckless or willful
misconduct.) In no event shall BBH be liable or responsible to
the Fund, any present or former shareholder of the Fund or any
other person for any error or delay which continued or was
undetected after the date of an audit performed by the certified
public accountants employed by the Fund if, in the exercise of
reasonable care in accordance with generally accepted accounting
standards, such accountants should have become aware of such
error or delay in the course of performing such audit. BBH's
liability for any such negligence or reckless or willful
misconduct which results in an error in determination of such net
asset value shall be limited exclusively to the direct,
out-of-pocket loss the Fund, shareholder or former shareholder
shall actually incur, measured by the difference between the
actual and the erroneously computed net asset value, and any
expenses to Fund shall incur in connection with correcting the
records of the Fund affected by such error (including charges
made by the fund's registrar and transfer agent for making such
corrections or communicating with shareholders or former
shareholders of the Fund affected by such error).
Without limiting the foregoing, BBH shall not be held
accountable or liable to the Fund, any shareholder or former
shareholder thereof or any person for any delays or losses,
damages or expenses any of them may suffer or incur resulting
from (1) BBH's failure to receive timely and suitable
notification concerning quotations or corporate actions relating
to or affecting portfolio securities of the Fund or (2) any
errors in the computation of the net asset value based upon or
arising out of quotations or information as to corporate actions
if received by BBH from a commercially reasonable source.
In the event of any error or delay in the determination of
such net asset value for which BBH may be liable, the Fund and
BBH will consult and make good faith efforts to reach agreement
on what actions should be taken in order to mitigate any loss
suffered by the Fund or its present or former shareholders, in
order that BBH's exposure to liability shall be reduced to the
extent possible after taking into account all relevant factors
and alternatives. Such actions might include the Fund or BBH
taking reasonable steps to collect from any shareholder or former
shareholder who has received any overpayment upon redemption of
shares such overpaid amount or to collect from any shareholder
who has underpaid upon a purchase of shares the amount of such
underpayment or to reduce the number of shares issued to such
shareholder. It is understood that in attempting to reach
agreement on the actions to be taken or the amount of the loss
which should appropriately be borne by BBH, the Fund and BBH will
consider such relevant factors as the amount of the loss
involved, the Fund's desire to avoid loss of shareholder good
will, the fact that other persons or entities could have
reasonably expected to have detected the error sooner than the
time it was actually discovered, the appropriateness of limiting
or eliminating the benefit which shareholder or former
shareholder might have obtained by reason of the error, and the
possibility that other parties providing services to the Fund
might be induced to absorb a portion of the loss incurred.
6. Limitation of Liability.
(a) BBH shall incur no liability with respect to any
telecommunications, equipment or power failures, or any failures
to perform or delays in performance by postal or courier services
or third-party information providers including commercially
reasonable pricing sources. BBH shall also incur no liability
under this Agreement if BBH or any agent or entity utilized by
BBH shall be prevented, forbidden or delayed from performing, or
omits to perform, any act or thing which this Agreement provides
shall be performed or omitted to be performed, by reason of
causes or events beyond its control, including but not limited to
(i) any Sovereign Risk, or (ii) any provision of any present or
future law, regulation or order of the United States or any state
thereof, or of any foreign country or political subdivision
thereof, or of any securities depository or clearing agency, or
(iii) any provision of any order or judgment of any court of
competent jurisdiction. A "Sovereign Risk" shall mean any
nationalization; expropriation; devaluation; revaluation;
confiscation; seizure; cancellation; destruction; strike; act of
war, terrorism, insurrection or revolution; or any other act or
event beyond BBH's control.
(b) BBH shall in no event be required to take any action which
is in contravention of any applicable law, rule or
regulation or any order or judgment of any court of
competent jurisdiction. The Fund hereby agrees to
indemnify BBH against and hold it harmless from any
and all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and
expenses) resulting from any act, omission, error or
delay or any claim, demand, action or suit, in
connection with or arising out of performance of its
obligations and duties under this Agreement, not
resulting from the willful malfeasance, bad faith or
negligence of BBH in the performance of such
obligations and duties.
(c) Notwithstanding anything else in this Agreement to the
contrary, BBH's entire liability to the Fund for any
loss or damage arising or resulting from its
performance hereunder or for any other cause
whatsoever, and regardless of the form of action,
shall be limited to the Fund's actual and direct
out-of-pocket expenses and losses which are
reasonably incurred by the Fund. In no event and
under no circumstances shall BBH or a Fund be held
liable to the other party for consequential or
indirect damages, loss of profits, damage to
reputation or business or any other special damages
arising under or by reason of any provision of this
Agreement or for any act or omission hereunder.
7. Reliance by BBH on Opinions of Counsel and Opinions of
Certified Public Accountants.
(a) BBH may consult with its counsel or the Fund's
counsel in any case where so doing appears to BBH to be necessary
or desirable. BBH shall not be considered to have engaged in any
misconduct or to have acted negligently and shall be without
liability in acting upon the advice of its counsel or of the
Fund's counsel.
(b) BBH may consult with a certified public accountant
or the Fund's Treasurer in any case where so doing appears to BBH
to be necessary or desirable. BBH shall not be considered to
have engaged in any misconduct or to have acted negligently and
shall be without liability in acting upon the advice of such
certified public accountant or the Fund's Treasurer.
8. Termination.
(a) This Agreement shall continue in full force and
effect until terminated by BBH or the Fund by an instrument in
writing delivered or mailed, postage prepaid, to the other party,
such termination to take effect not sooner than ninety (90) days
after the date of such delivery or mailing. In the event a
termination notice is given by a party hereto, all expenses
associated with the movement of records and materials and the
conversion thereof shall be paid by the Fund for which services
shall cease to be performed hereunder. BBH shall be responsible
for completing all actions in progress when such termination
notice is given unless otherwise agreed.
Notwithstanding anything in the foregoing provisions of this
clause, if it appears impracticable in the circumstances to
effect an orderly delivery of the necessary and appropriate
records of BBH to a successor within the time specified in the
notice of termination as aforesaid, BBH and the Fund agree that
this Agreement shall remain in full force and effect for such
reasonable period as may be required to complete necessary
arrangements with a successor.
(b) If a party hereto shall fail to perform its duties
and obligations hereunder (a "Defaulting Party") resulting in
material loss to another party (the "Non-Defaulting Party"), the
Non-Defaulting Party may give written notice thereof to the
Defaulting Party, and if such material breach shall not have been
remedied within thirty (30) days after such written notice is
given, then the Non-Defaulting Party may terminate this Agreement
by giving thirty (30) days' written notice of such termination to
the Defaulting Party. If BBH is the Non-Defaulting Party, its
termination of this Agreement shall not constitute a waiver of
any other rights or remedies of BBH with respect to payment for
services performed prior to such termination or rights of BBH to
be reimbursed for out-of-pocket expenses. In all cases,
termination by the Non-Defaulting Party shall not constitute a
waiver by the Non-Defaulting Party of any other rights it might
have under this Agreement or otherwise against the Defaulting
Party.
(c) This Section 7 shall survive any termination of
this Agreement, whether for cause or not for cause.
9. Amendment of this Agreement. This Agreement
constitutes the entire understanding and agreement of the parties
hereto with respect to the subject matter hereof. No provision
of this Agreement may be amended or terminated except by a
statement in writing signed by the party against which
enforcement of the amendment or termination is sought.
In connection with the operation of this Agreement, the Fund
and BBH may agree in writing from time to time on such provisions
interpretive of or in addition to the provisions of this
Agreement as may in their joint opinion be consistent with the
general tenor of this Agreement. No interpretive or additional
provisions made as provided in the preceding sentence shall be
deemed to be an amendment to this Agreement.
In the event any provision of this Agreement is determined
to be void or unenforceable, such determination shall not affect
the remainder of this Agreement, which shall continue to be in
force.
The section headings and the use of defined terms in the
singular or plural tenses in this Agreement are for the
convenience of the parties and in no way alter, amend, limit or
restrict the contractual obligations of the parties set forth in
this Agreement.
10. GOVERNING LAW AND JURISDICTION. THIS AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND BE GOVERNED BY THE LAWS OF,
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAW OF SUCH STATE. THE PARTIES HERETO IRREVOCABLY CONSENT TO THE
EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND
THE FEDERAL COURTS LOCATED IN NEW YORK CITY IN THE BOROUGH OF
MANHATTAN.
11. Notices. Notices and other writings delivered or
mailed postage prepaid to a Fund addressed to the Fund at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or to such other address as the
Fund may have designated to BBH in writing, or to BBH at 00 Xxxxx
Xxxxxx, Xxxxxx, XX 00000, Attention: Manager, Fund Accounting
Department, or to such other address as BBH may have designated
to the Fund in writing, shall be deemed to have been properly
delivered or given hereunder to the respective addressee.
12. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the Fund and BBH and their respective
successors and assigns, provided that no party hereto may assign
this Agreement or any of its rights or obligations hereunder
without the written consent of the other party.
13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original, and which collectively shall be deemed to constitute
only one instrument. This Agreement shall become effective when
one or more counterparts have been signed and delivered by each
of the parties.
14. Exclusivity. The services furnished by BBH hereunder
are not to be deemed exclusive, and BBH shall be free to furnish
similar services to others.
15. Authorization. The Fund hereby represents and warrants
that the execution and delivery of this Agreement have been
authorized by the Fund's Board of Directors or Trustees and that
this Agreement has been signed by an authorized officer of the
Fund.
16. Fund Assets Only. BBH agrees that any claims by it
against a Fund under this Agreement may be satisfied only from
the assets of that Fund; that the person executing this Agreement
has executed it on behalf of the Funds and not individually, and
that the obligations of the Funds arising out of this Agreement
are not binding upon such person or the Funds' shareholders
individually but are binding only upon the assets and property of
the applicable Fund; and that no shareholders, directors,
trustees or offices of the Funds may be held personally liable or
responsible for any obligations of a Fund arising out of this
Agreement. The parties agree that the assets and liabilities of
each Fund are separate and distinct from the assets and
liabilities of each other Fund and that no Fund shall be liable
or shall be charged for any debt, obligation or liability of any
other Fund, whether arising under this Agreement or otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their duly
authorized officers as of the date first written above.
XXXXX BROTHERS XXXXXXXX & CO.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Partner
Date: 9/18/03
BBH FUND, INC.
BBH TRUST
BBH U.S. MONEY MARKET PORTFOLIO
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
APPENDIX A
THE FOLLOWING AUTHORIZED SOURCES ARE TO BE USED FOR PRICING AND
FOREIGN EXCHANGE QUOTATIONS, CORPORATE ACTIONS, DIVIDENDS AND
RIGHTS OFFERINGS:
AUTHORIZED SOURCES
BLOOMBERG
EXTEL (LONDON)
FUND MANAGERS
INTERACTIVE DATA CORPORATION
REPUTABLE BROKERS
REUTERS
SUBCUSTODIAN BANKS
TELEKURS
VALORINFORM (GENEVA)
REPUTABLE FINANCIAL PUBLICATIONS
STOCK EXCHANGES
FINANCIAL INFORMATION INC. CARD
XX XXXXX
FRI CORPORATION
XXXXXXX XXXXX PRICING SERVICE
XXXXXX
BRIDGE
