6
Exhibit (h)(iv) under Form N-1A
Exhibit 10 under 601/Reg S-K
AMENDED AND RESTATED SHAREHOLDER SERVICING AGREEMENT
AGREEMENT, amended and restated as of August 4, 2003 and December 1,
2003, severally and not jointly, among BBH FUND, INC., BBH COMMON SETTLEMENT
FUND, INC. and BBH COMMON SETTLEMENT FUND II, INC., each a Maryland
Corporation, BBH Trust, a Massachusetts business trust, (collectively, the
"Investment Company") each having their principal place of business at 00
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and XXXXX BROTHERS XXXXXXXX & CO.
(the "Financial Institution"), a New York limited partnership, having its
principal place of business at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as the
shareholder servicing agent hereunder (the "Agent");
W I T N E S S E T H:
WHEREAS, the Investment Company's shares of common stock (the "Shares")
are divided into separate series (each, a "Fund"); and
WHEREAS, the Investment Company desires to appoint the Financial
Institution as its Agent to perform certain services for shareholders of and
prospective investors in the Funds; and
WHEREAS, the Financial Institution desires to accept such appointment;
NOW, THEREFORE, each Investment Company and the Financial Institution
hereby agree as follows:
1. Appointment. The Financial Institution, as Agent, hereby agrees
to perform certain services for shareholders of and prospective investors in
the Funds as hereinafter set forth. The Agent's appointment hereunder is
exclusive, and the parties recognize and agree that the Investment Company
may not enter into other shareholder servicing agreements, in writing or
otherwise.
2. Service to Be Performed.
2.1. Type of Service. The Agent shall be responsible for performing
shareholder account, administrative and servicing functions with respect to
the shareholders of the Funds that are recorded as such on the records of a
Fund's transfer agent other than those shareholders of record, if any, which
are Eligible Institutions, (as defined in a Fund's prospectus). These
services shall include without limitation:
(a) answering inquiries from shareholders of and prospective
investors in the Funds regarding account status and history, the manner in
which purchases and redemptions of the Shares may be effected, and certain
other matters pertaining to the Funds; (b) assisting shareholders of and
prospective investors in the Funds in designating and changing dividend
options, account designations and addresses; and (c) providing such other
related services as the Investment Company or a shareholder of or prospective
investor in a Fund may reasonably request. The Agent shall provide all
personnel and facilities to perform the functions described in this paragraph.
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 Investment Company. The Investment Company acknowledges that
the Agent's ability to perform on a timely basis certain of its
obligations under this Agreement depends upon the Investment Company's
timely delivery of certain materials and/or information to the Agent.
The Investment Company agrees to use its best efforts to provide such
materials to the Agent in a timely manner.
3. Fees. 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 shareholders who do not hold their
shares with an Eligible Institution (as defined in a Fund's prospectus). 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
Financial Institution by the Investment Company with respect to the
transactions contemplated hereby.
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 shareholders of or prospective
investors in the Funds, excepting only accurate communication of any
information provided by or on behalf of any administrator of the Investment
Company or any distributor of the Shares or any factual information contained
in a Fund's then-current prospectus.
5. Indemnification.
5.1. Indemnification of the Agent. The Investment Company 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 Investment Company 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
Investment Company 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 Investment
Company, 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 Investment
Company, excepting only the gross negligence or willful misconduct of the
Agent.
In any case in which the Investment Company may be asked to indemnify
or hold the Agent harmless, the Investment Company shall be advised of all
pertinent facts concerning the situation in question and the Agent shall use
reasonable care to identify and notify the Investment Company promptly
concerning any situation which presents or appears likely to present a claim
for indemnification against the Investment Company. The Investment Company
shall have the option to defend the Agent against any Claim which may be the
subject of indemnification hereunder. In the event that the Investment
Company elects to defend against such Claim, the defense shall be conducted
by counsel chosen by the Investment Company and reasonably satisfactory to
the Agent. The Agent may retain additional counsel at its expense. Except
with the prior written consent of the Investment Company, the Agent shall not
confess any Claim or make any compromise in any case in which the Investment
Company will be asked to indemnify the Agent.
5.2. Indemnification of the Investment Company. Without limiting the
rights of the Investment Company under applicable law, the Agent will
indemnify and hold the Investment Company harmless from all losses, claims,
damages, liabilities or expenses (including reasonable counsel fees and
expenses) from any Claim (a) resulting from the 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 Investment Company, 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
Investment Company.
In any case in which the Agent may be asked to indemnify or hold the
Investment Company harmless, the Agent shall be advised of all pertinent
facts concerning the situation in question and the Investment Company 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 Investment Company 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 Investment Company. The Investment
Company may retain additional counsel at its expense. Except with the prior
written consent of the Agent, the Investment Company shall not confess any
claim or make any compromise in any case in which the Agent will be asked to
indemnify the Investment Company.
5.3. Survival of Indemnities. The indemnities granted by the parties
in this Section 5 shall survive the termination of this Agreement.
6. 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.
7. Termination. This Agreement may be terminated by the Investment
Company, without the payment of any penalty, at any time on 60 days' notice,
by a vote of a majority of the Board of Directors/Trustees of the Investment
Company who are not "interested persons" of the Investment Company (as
defined in the 1940 Act), or by a "vote of a majority of the outstanding
voting securities" (as defined in the 0000 Xxx) of the Investment Company.
The Agent may terminate this Agreement on 60 days' notice to the Investment
Company. Upon termination hereof, the Investment Company shall pay such
compensation as may be due the Agent as of the date of such termination.
8. Changes; Amendments. This Agreement may be changed or amended only by
written instrument signed by both parties.
9. Several Liability. 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.
10. Personal Liability. The Directors/Trustees have authorized the
execution of this Agreement in their capacity as Directors/Trustees and not
individually and the Agent agrees that neither Fund shareholders nor the
Directors/Trustees nor any officer, employee, representative or agent of the
Investment Company shall be personally liable upon, nor shall resort be had
to their private property for the satisfaction of, obligations given,
executed or delivered on behalf of or by the Investment Company, that neither
Fund shareholders nor the Directors/Trustees, officers, employees,
representatives or agents of the Investment Company shall be personally
liable hereunder, and the Agent shall look solely to the property of the
Investment Company and each Fund for the satisfaction of any claim hereunder.
11. 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.
BBH FUND, INC.
BBH TRUST
BBH COMMON SETTLEMENT FUND, INC.
BBH COMMON SETTLEMENT FUND II, INC. XXXXX BROTHERS XXXXXXXX & CO.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President Title: Managing Director
APPENDIX A
SHAREHOLDER SERVICING AGREEMENT ANNUAL FEE RATES
Fund: Annual Fee Rate:
BBH Fund, Inc.:
BBH Inflation-Indexed Securities Fund - Class A 0.25%
BBH Inflation-Indexed Securities Fund - Class N 0.25%
BBH Tax-Efficient U.S. Equity Fund - Class N 0.25%
BBH High Yield Fixed Income Fund - Class N 0.25%
BBH Broad Market Fixed Income Fund - Class N 0.25%
BBH International Equity Fund - Class N 0.25%
BBH European Equity Fund 0.25%
BBH Pacific Basin Equity Fund 0.25%
BBH Trust:
BBH Money Market Fund 0.25%
BBH U.S. Treasury Money Fund 0.225%
BBH Tax Free Short/Intermediate Fixed Income Fund 0.25%
BBH Tax-Exempt Money Fund 0.25%
BBH Common Settlement Fund, Inc. 0.05%
BBH Common Settlement Fund II, Inc. 0.05%
