EXHIBIT (H) (VII) UNDER FORM N-1A
EXHIBIT (10) UNDER ITEM 601/REG. S-K
BBH TRUST
ELIGIBLE INSTITUTION AGREEMENT
AGREEMENT, dated , 2007, by and between BBH TRUST (the
"Trust"), a Delaware statutory trust having its principal place of business at
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, and ▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO. (the
"Financial Institution"), a New York limited partnership, having its principal
place of business at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as an eligible
institution hereunder (the "Agent");
W I T N E S S E T H:
WHEREAS, the Trust's shares (the "Shares"), are divided into separate
series (each, a "Fund"); and
WHEREAS, all transactions in Shares of any Fund may be made by investors
who are customers of, and using the services of, a financial institution as
defined in the then-current prospectus(es) of the Funds, which has entered into
an eligible institution agreement with the Trust; and
WHEREAS, the Financial Institution wishes to make it possible for its
customers (the "Customers"), to purchase Shares and wishes to act as the
Customers' agent in performing certain administrative functions in connection
with purchases and redemptions of Shares from time to time upon the order of
Customers and to provide related services to its Customers in connection with
their investments in the Funds; and
WHEREAS, it is in the interest of the Trust to make the services of the
Agent available to Customers who are or may become shareholders of the Funds;
NOW, THEREFORE, the Trust and the Financial Institution hereby agree as
follows:
1. Appointment. The Financial Institution, as Agent, hereby agrees to
perform certain services for Customers as hereinafter set forth. The Agent's
appointment hereunder is non-exclusive, and the parties recognize and agree
that, from time to time, the Trust may enter into other eligible institution
agreements, in writing, with other financial institutions.
2. Service to Be Performed.
2.1. Type of Service. The Agent shall be responsible for performing
shareholder account, administrative and servicing functions, which shall include
without limitation:
(a) answering Customer inquiries regarding account status and history, the
manner in which purchases and redemptions of Shares may be effected, and certain
other matters pertaining to the Funds; (b) assisting Customers in designating
and changing dividend options, account designations and addresses; (c) providing
necessary personnel and facilities to establish and maintain certain shareholder
accounts and records enabling the Agent to hold, as agent, its Customers' shares
in the name of the Agent or its nominee on the shareholder records of the Trust;
(d) assisting in processing purchase and redemption transactions; (e) arranging
for the wiring of funds; (f) transmitting and receiving funds in connection with
Customer orders to purchase or redeem Shares; (g) providing periodic statements
showing a Customer's account balances and, to the extent practicable,
integration of such information with information concerning other client
transactions otherwise effected with or through the Financial Institution; (h)
furnishing (either separately or on an integrated basis with other reports sent
to a Customer by the Agent) monthly and annual statements and confirmations of
all purchases and redemptions of Shares in a Customer's account; (i)
transmitting proxy statements, annual reports, updated prospectuses and other
communications from the Trust to Customers; (j) receiving, tabulating and
transmitting to the Trust proxies executed by Customers with respect to annual
and special meetings of shareholders of the Funds; and (k) providing such other
related services as the Trust or a Customer may reasonably request. The Agent
shall provide all personnel and facilities to perform the functions described in
this paragraph with respect to its Customers.
2.2. Standard of Services. All services to be rendered by the Agent
hereunder shall be performed in a professional, competent and timely manner.
The details of the operating standards and procedures to be followed by the
Agent in performance of the services described above shall be determined from
time to time by agreement between the Agent and the Trust. The Trust
acknowledges that the Agent's ability to perform on a timely basis certain of
its obligations under this Agreement depends upon the Trust's timely delivery of
certain materials and/or information to the Agent. The Trust agrees to use its
best efforts to provide such materials to the Agent in a timely manner.
3. Fees.
3.1. Fees from the Funds. In consideration for the services described in
Section 2 hereof and the incurring of expenses in connection therewith, the
Agent shall receive from each Fund fees as identified in Appendix A hereto.
Such fees are to be paid in arrears monthly at an annual rate of a percentage of
the average daily net assets of such Fund represented by Shares owned during the
period for which payment is being made by Customers for whom the Agent is the
holder or agent of record. For purposes of determining the fees payable to the
Agent hereunder, the value of each Fund's net assets shall be computed in the
manner specified in each Fund's then-current prospectus for the computation of
the net asset value of that Fund's shares. The above fees constitute all fees
to be paid to the Agent from the Funds with respect to the transactions
contemplated hereby. To the extent required by applicable rules and regulations
of the Securities and Exchange Commission, the Trust shall make written
disclosure of the fees paid or to be paid to the Agent pursuant to this Section
3.1 of this Agreement.
3.2. Fees from Customers. It is agreed that the Financial Institution
may impose certain conditions on Customers, in addition to or different from
those imposed by the Trust, such as requiring a larger minimum initial
investment or charging Customers direct fees for the same or similar services as
are provided hereunder by the Financial Institution as Agent (which fees may
either relate specifically to the Financial Institution's services with respect
to the Funds or generally cover services not limited to those with respect to
the Funds); provided, however, that the Financial Institution may not charge
Customers any direct fee which would constitute a "sales load" within the
meaning of Section 2(a)(35) of the Investment Company Act of 1940, as amended
(the "1940 Act"). The Financial Institution shall ▇▇▇▇ Customers directly for
such fees. In the event the Financial Institution charges Customers such fees,
it shall notify the Trust in advance and make appropriate prior written
disclosure (such disclosure to be in accordance with all applicable laws) to
Customers of any such fees charged to the Customer. It is understood, however,
that in no event shall the Financial Institution have recourse or access as
Agent or otherwise to the account of any shareholder of a Fund except to the
extent expressly authorized by law or by such shareholder, or to any assets of
the Funds, for payment of any direct fees referred to in this Section 3.2.
4. Information Pertaining to the Shares. The Agent and its officers,
employees and agents are not authorized to make any representations concerning
the Funds or the Shares to Customers or prospective Customers, excepting only
accurate communication of any information provided by or on behalf of any
administrator of the Trust or any distributor of the Shares or any factual
information contained in a then-current Fund prospectus. In furnishing such
information regarding the Funds or the Shares, the Agent shall act as agent for
the Customer only and shall have no authority to act as agent for the Trust.
Advance copies or proofs of all materials which are generally circulated or
disseminated by the Agent to Customers or prospective Customers which identify
or describe the Funds shall be provided to the Trust at least 10 days prior to
such circulation or dissemination (unless the Trust consents in writing to a
shorter period), and such materials shall not be circulated or disseminated or
further circulated or disseminated at any time after the Trust shall have given
written notice to the Agent of any objection thereto.
Nothing in this Section 4 shall be construed to make the Trust liable for
the use (as opposed to the accuracy) of any information about the Funds which is
disseminated by the Agent.
5. Use of the Agent's Name. The Trust shall not use the name of the
Agent (the Financial Institution or any of its affiliates or subsidiaries) in
any prospectus, sales literature or other material relating to the Funds in a
manner not approved by the Agent prior thereto in writing; provided, however,
that the approval of the Agent shall not be required for any use of its name
which merely refers in accurate and factual terms to its appointment hereunder
or which is required by the Securities and Exchange Commission or any state
securities authority or any other appropriate regulatory, governmental or
judicial authority; provided, further, that in no event shall such approval be
unreasonably withheld or delayed.
6. Use of the Trust's Name. The Agent shall not use the name of the
Trust or any Fund on any checks, bank drafts, bank statements or forms for other
than internal use in a manner not approved by the Trust prior thereto in
writing; provided, however, that the approval of the Trust shall not be required
for the use of the name of a Fund or the Trust in connection with communications
permitted by Section 4 hereof or (subject to Section 4, to the extent the same
may be applicable) for any use of the name of a Fund or the Trust which merely
refers in accurate and factual terms to the Trust or any Fund in connection with
the Agent's role hereunder or which is required by the Securities and Exchange
Commission or any state securities authority or any other appropriate
regulatory, governmental or judicial authority; provided, further, that in no
event shall such approval be unreasonably withheld or delayed.
7. Record Keeping.
7.1. Section 31(a). The Agent shall maintain records in a form
acceptable to the Trust and in compliance with applicable laws and the rules and
regulations of the Securities and Exchange Commission, including but not limited
to the record-keeping requirements of Section 31(a) of the 1940 Act and the
rules thereunder. Such records shall be deemed to be the property of the Trust
and will be made available, at the Trust's request, for inspection and use by
the Trust, representatives of the Trust and governmental authorities. The Agent
agrees that, for so long as it retains any records of the Trust, it will meet
all reporting requirements pursuant to the 1940 Act and applicable to the Agent
with respect to such records.
7.2. Rules 17a-3 and 17a-4. The Agent shall maintain accurate and
complete records with respect to services performed by the Agent in connection
with the purchase and redemption of Shares. Such records shall be maintained in
a form reasonably acceptable to the Trust and in compliance with the
requirements of Rules 17a-3 and 17a-4 under the Securities Exchange Act of 1934,
as amended, pursuant to which any dealer of the Shares must maintain certain
records. All such records maintained by the Agent shall be the property of such
dealer and will be made available for inspection and use by the Trust or such
dealer upon the request of either. The Agent shall file with the Securities and
Exchange Commission and other appropriate governmental authorities, and furnish
to the Trust and any such dealer copies of, all reports and undertakings as may
be reasonably requested by the Trust or such dealer in order to comply with the
said rules. If so requested by any such dealer, the Agent shall confirm to such
dealer its obligations under this Section 7.2 by a writing reasonably
satisfactory to such dealer.
7.3. Identification, Etc. of Records. The Trust shall from time to time
instruct the Agent in writing as to, and the Trust and the Agent shall
periodically review, the records to be maintained and the procedures to be
followed by the Agent in complying with the foregoing Sections 7.1 and 7.2 and
the Agent shall be entitled to rely on such instructions.
7.4. Transfer of Customer Data. In the event this Agreement is
terminated or a successor to the Agent is appointed, the Agent shall, at the
expense of the Trust, transfer to such designee as the Trust may direct a
certified list of the shareholders of the Trust serviced by the Agent (with
name, address and tax identification or Social Security number), a complete
record of the account of each such shareholder and the status thereof, and all
other relevant books, records, correspondence, and other data established or
maintained by the Agent under this Agreement. In the event this Agreement is
terminated, the Agent will use its best efforts to cooperate in the orderly
transfer of such duties and responsibilities, including assistance in the
establishment of books, records and other data by the successor.
7.5. Survival of Record-Keeping Obligations. The record-keeping
obligations imposed in this Section 7 shall survive the termination of this
Agreement for a period of three years.
7.6. Obligations Pursuant to Agreement Only. Nothing in this Section 7
shall be construed to mean that the Agent would, by virtue of its role
hereunder, be required under applicable law to maintain the records required to
be maintained by it under this Section 7, but it is understood that the Agent
has agreed to do so in order to enable the Trust and its dealer or dealers to
comply with laws and regulations applicable to them.
7.7. Agent's Rights to Copy Records. Anything in this Section 7 to the
contrary notwithstanding, except to the extent otherwise prohibited by law, the
Agent shall have the right to copy, maintain and use any records maintained by
the Agent pursuant to this Section 7, except as otherwise prohibited by Sections
4 and 6 hereof.
8. Force Majeure. The Agent shall not be liable or responsible for
delays or errors by reason of circumstances beyond its reasonable control,
including, but not limited to, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdown, flood or
catastrophe, Acts of God, insurrection, war, riots or failure of communication
or power supply.
9. Indemnification.
9.1. Indemnification of the Agent. The Trust will indemnify and hold the
Agent harmless from all losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses) from any claim, demand, action
or suit (collectively, "Claims") (a) arising in connection with misstatements or
omissions in a Fund's Prospectus, actions or inactions by the Trust or any of
its agents or contractors or the performance of the Agent's obligations
hereunder, and (b) not resulting from the gross negligence or willful misconduct
of the Agent, its officers, employees or agents. Notwithstanding anything
herein to the contrary, the Trust will indemnify and hold the Agent harmless
from any and all losses, claims, damages, liabilities or expenses (including
reasonable counsel fees and expenses) resulting from any Claim as a result of
its acting in accordance with any written instructions reasonably believed by
the Agent to have been executed by any person duly authorized by the Trust, or
as a result of acting in reliance upon any instrument or stock certificate
reasonably believed by the Agent to have been genuine and signed, countersigned
or executed by a person duly authorized by the Trust, excepting only the gross
negligence or willful misconduct of the Agent.
In any case in which the Trust may be asked to indemnify or hold the Agent
harmless, the Trust shall be advised of all pertinent facts concerning the
situation in question and the Agent shall use reasonable care to identify and
notify the Trust promptly concerning any situation which presents or appears
likely to present a claim for indemnification against the Trust. The Trust
shall have the option to defend the Agent against any Claim which may be the
subject of indemnification hereunder. In the event that the Trust elects to
defend against such Claim, the defense shall be conducted by counsel chosen by
the Trust and reasonably satisfactory to the Agent. The Agent may retain
additional counsel at its expense. Except with the prior written consent of the
Trust, the Agent shall not confess any Claim or make any compromise in any case
in which the Trust will be asked to indemnify the Agent.
9.2. Indemnification of the Trust. Without limiting the rights of the
Trust under applicable law, the Agent will indemnify and hold the Trust harmless
from all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) from any Claim (a) resulting from gross negligence or
willful misconduct of the Agent, its officers, employees or agents, and (b) not
resulting from the Agent's actions in accordance with written instructions
reasonably believed by the Agent to have been executed by any person duly
authorized by the Trust, or in reliance upon any instrument or stock certificate
reasonably believed by the Agent to have been genuine and signed, countersigned
or executed by a person duly authorized by the Trust.
In any case in which the Agent may be asked to indemnify or hold the Trust
harmless, the Agent shall be advised of all pertinent facts concerning the
situation in question and the Trust shall use reasonable care to identify and
notify the Agent promptly concerning any situation which presents or appears
likely to present a claim for indemnification against the Agent. The Agent
shall have the option to defend the Trust against any Claim which may be the
subject of indemnification hereunder. In the event that the Agent elects to
defend against such Claim, the defense shall be conducted by counsel chosen by
the Agent and reasonably satisfactory to the Trust. The Trust may retain
additional counsel at its expense. Except with the prior written consent of the
Agent, the Trust shall not confess any Claim or make any compromise in any case
in which the Agent will be asked to indemnify the Trust.
9.3. Survival of Indemnities. The indemnities granted by the parties in
this Section 9 shall survive the termination of this Agreement.
10. Notices. All notices or other communications hereunder to either
party shall be in writing and shall be deemed sufficient if mailed to such party
at the address of such party set forth in the preamble of this Agreement or at
such other address as such party may have designated by written notice to the
other.
11. Termination. This Agreement may be terminated by the Trust, without
the payment of any penalty, at any time on 60 days' notice, by a vote of a
majority of the Board of Directors of the Trust who are not "interested persons"
of the Trust (as defined in the 1940 Act), or by "a vote of a majority of the
outstanding voting securities" (as defined in the ▇▇▇▇ ▇▇▇) of the Trust. The
Agent may terminate this Agreement on 60 days' notice to the Trust. Upon
termination hereof, the Trust shall pay such compensation as may be due the
Agent as of the date of such termination.
12. Changes; Amendments. This Agreement may be changed or amended only
by written instrument signed by both parties.
13. Authority to Vote. The Trust hereby confirms that at any meeting of
shareholders of the Trust or of any Fund, the Agent is authorized to vote any
Shares held in accounts serviced by the Agent and which are otherwise not
represented in person or by proxy at the meeting, proportionately in accordance
with the votes cast by holders of all Shares otherwise represented at the
meeting in person or by proxy and held in accounts serviced by the Agent.
14. Shareholder Updates. The Trust shall give the Agent advance written
notice of any change in the Trust's place of incorporation, mailing address,
management, investment objectives, fees or redemption rights. The Trust shall
give such advance notice to the owners of Shares to the extent required by
federal securities laws or the rules and regulations of the Securities and
Exchange Commission.
15. Miscellaneous. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of New York. The captions
in this Agreement are included for convenience of reference only and in no way
define or limit any of the provisions hereof or otherwise affect their
construction or effect. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
BBH TRUST
By:
Name:
Title:
▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO.
By:
Name:
Title:
APPENDIX A
BBH TRUST
ELIGIBLE INSTITUTION AGREEMENT ANNUAL FEE RATES
(AS OF , 2007)
Fund: Annual Fee Rate:
BBH Real Return Fund - Class N 0.25%
BBH Core Select - Class N 0.25%
BBH Broad Market Fund - Class N 0.25%
BBH International Equity Fund - Class N 0.25%
