Exhibit 23(h)(vi) under Form N-1A
Exhibit 10 under Item 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, ▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & 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 ▇▇▇▇ 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 ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or to such other address as the Fund may have
designated to BBH in writing, or to BBH at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, 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.
▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Partner
Date: 9/18/03
BBH FUND, INC.
BBH TRUST
BBH U.S. MONEY MARKET PORTFOLIO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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
▇▇ ▇▇▇▇▇
FRI CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRICING SERVICE
▇▇▇▇▇▇
BRIDGE