Exhibit (g)(2) under Form N-1A
Exhibit (10) under 601/Reg. S-K
AMENDED AND RESTATED TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of the 1st day of July, 2000, is amended
and restated as of the 4th day of August, 2003, severally and not
jointly, among BBH Fund, Inc., a Maryland corporation, BBH Trust,
a Massachusetts trust, BBH Common Settlement Fund, Inc., a
Maryland corporation, and BBH Common Settlement Fund II, Inc., a
Maryland corporation, each with their principal office and place
of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (each,
an "Investment Company"), and Forum Shareholder Services, LLC, a
Delaware limited liability company with its principal office and
place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
("Forum").
WHEREAS, each Investment Company is registered under
the Investment Company Act of 1940, as amended (the "1940 Act"),
as an open-end management investment company and may issue its
shares (the "Shares"), in separate series and classes; and
WHEREAS, each Investment Company offers shares in
various series (each such series, together with all other series
subsequently established by an Investment Company and made
subject to this Agreement in accordance with Section 12, being
herein referred to as a "Fund," and collectively as the "Funds")
and an Investment Company may in the future offer shares of
various classes of each Fund (each such class together with all
other classes subsequently established by an Investment Company
in a Fund being herein referred to as a "Class," and collectively
as the "Classes");
WHEREAS, each Investment Company desires that Forum perform
as the transfer agent and dividend disbursing agent for each Fund
and Forum is willing to provide these services on the terms and
conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual
covenants and agreements contained herein, each Investment
Company and Forum hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) Each Investment Company, on behalf of the Funds, hereby
appoints Forum to act as, and Forum agrees to act as, (i)
transfer agent for the authorized and issued shares of each
Investment Company representing interests in each of the
respective Funds and Classes thereof ("Shares"), (ii) dividend
disbursing agent and (iii) agent in connection with any
accumulation, open-account or similar plans provided to the
registered owners of shares of any of the Funds ("Shareholders")
and set out in the currently effective prospectuses and
statements of additional information (collectively "prospectus")
of the applicable Fund, including, without limitation, any
periodic investment plan or periodic withdrawal program.
(b) In connection therewith, each Investment Company
has delivered to Forum copies of (i) the Investment Company's
Articles of Incorporation/Declaration of Trust and Bylaws
(collectively, as amended from time to time, "Organic
Documents"), (ii) the Investment Company's Registration Statement
and all amendments thereto filed with the U.S. Securities and
Exchange Commission ("SEC") pursuant to the Securities Act of
1933, as amended (the "Securities Act"), or the 1940 Act (the
"Registration Statement"), (iii) the Investment Company's current
prospectus, and (iv) each current plan of distribution or similar
document adopted by the Investment Company under Rule 12b-1 under
the 1940 Act ("Plan") and each current shareholder service plan
or similar document adopted by the Investment Company ("Service
Plan") and shall promptly furnish Forum with all amendments of or
supplements to the foregoing. The Investment Company shall
deliver to Forum a certified copy of the resolution of the Board
of Trustees of BBH Trust; and the Board of Directors of BBH Fund,
Inc, BBH Common Settlement Fund, Inc. and BBH Common Settlement
Fund II, Inc. (collectively referred to as the "Board")
appointing Forum and authorizing the execution and delivery of
this Agreement.
SECTION 2. DUTIES OF FORUM
(a) Forum agrees that in accordance with procedures
established from time to time by agreement between each
Investment Company on behalf of each of the Funds, as applicable,
and Forum, Forum will perform the following services:
(i) provide the services of a transfer agent, dividend
disbursing agent and, as relevant, agent in connection with
accumulation, open-account or similar plans (including
without limitation any periodic investment plan or periodic
withdrawal program) that are customary for open-end
management investment companies including: (A) maintaining
all Shareholder accounts, (B) preparing Shareholder meeting
lists, (C) mailing proxies and related materials to
Shareholders, (D) mailing Shareholder reports and
prospectuses to current Shareholders, (E) withholding taxes
on U.S. resident and non-resident alien accounts, (F)
preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required by federal authorities with
respect to distributions for Shareholders, (G) preparing and
mailing confirmation forms and statements of account to
Shareholders for all purchases and redemptions of Shares and
other confirmable transactions in Shareholder accounts, (H)
preparing and mailing activity statements for Shareholders,
and (I) providing Shareholder account information;
(ii) receive for acceptance orders for the purchase of
Shares and promptly deliver payment and appropriate
documentation therefor to the custodian of the applicable
Fund (the "Custodian") or, in the case of Fund's operating
in a master-feeder or fund of funds structure, to the
transfer agent or interestholder recordkeeper for the master
portfolios in which the Fund invests;
(iii)pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the appropriate
Shareholder account;
(iv) receive for acceptance redemption requests and deliver
the appropriate documentation therefor to the Custodian or,
in the case of Fund's operating in a master-feeder
structure, to the transfer agent or interestholder
recordkeeper for the master fund in which the Fund invests;
(v) as and when it receives monies paid to it by the
Custodian with respect to any redemption, pay the redemption
proceeds as required by the prospectus pursuant to which the
redeemed Shares were offered and as instructed by the
redeeming Shareholders;
(vi) effect transfers of Shares upon receipt of appropriate
instructions from Shareholders;
(vii)prepare and transmit to Shareholders (or credit the
appropriate Shareholder accounts) payments for all
distributions declared by the Trust with respect to Shares;
(viii) issue share certificates and replacement share
certificates for those share certificates alleged to have
been lost, stolen, or destroyed upon receipt by Forum of
indemnification satisfactory to Forum and protecting Forum
and the Investment Company and, at the option of Forum,
issue replacement certificates in place of mutilated share
certificates upon presentation thereof without requiring
indemnification;
(ix) receive from Shareholders or debit Shareholder accounts
for sales commissions, including contingent deferred,
deferred and other sales charges, and service fees (i.e.,
wire redemption charges) and prepare and transmit payments
to underwriters, selected dealers and others for commissions
and service fees received;
(x) track shareholder accounts by financial intermediary
source and otherwise as reasonably requested by the
Investment Company and provide periodic reporting to the
Investment Company or its administrator or other agent;
(xi) maintain records of account for and provide reports and
statements to the Investment Company and Shareholders as to
the foregoing;
(xii)record the issuance of Shares of the Investment Company
and maintain pursuant to Rule 17Ad-10(e) under the
Securities Exchange Act of 1934, as amended ("1934 Act") a
record of the total number of Shares of the Investment
Company, each Fund and each Class thereof, that are
authorized, based upon data provided to it by the Investment
Company, and are issued and outstanding and provide the
Investment Company on a regular basis a report of the total
number of Shares that are authorized and the total number of
Shares that are issued and outstanding;
(xiii) provide a system which will enable the Investment
Company to calculate the total number of Shares of each Fund
and Class thereof sold in each State;
(xiv)monitor and make appropriate filings with respect to
the escheatment laws of the various states and territories
of the United States; and
(xv) oversee the activities of proxy solicitation firms.
(b) Forum shall receive and tabulate proxy votes,
coordinate the tabulation of proxy and shareholder meeting votes
and perform such other additional services as may be specified
from time to time by an Investment Company, all pursuant to
mutually acceptable compensation and implementation agreements.
(c) Each Investment Company or its administrator or other
agent (i) shall identify to Forum in writing those transactions
and assets to be treated as exempt from reporting for each state
and territory of the United States and for each foreign
jurisdiction (collectively "States") and (ii) shall monitor the
sales activity with respect to Shareholders domiciled or resident
in each State. The responsibility of Forum for the Investment
Company's State registration status is solely limited to the
reporting of transactions to the Investment Company, and Forum
shall have no obligation, when recording the issuance of Shares,
to monitor the issuance of such Shares or to take cognizance of
any laws relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of the Investment
Company or its administrator or other agent.
(d) Forum shall establish and maintain facilities and
procedures reasonably acceptable to each Investment Company for
the safekeeping, control, preparation and use of share
certificates, check forms, and facsimile signature imprinting
devices. Forum shall establish and maintain facilities and
procedures reasonably acceptable to each Investment Company for
safekeeping of all records maintained by Forum pursuant to this
Agreement.
(e) Forum shall cooperate with each Fund's independent
public accountants and shall take reasonable action to make all
necessary information available to the accountants for the
performance of the accountants' duties.
(f) Except with respect to Forum's duties as set forth
in this Section 2 and except as otherwise specifically provided
herein, each Investment Company assumes all responsibility for
ensuring that the Investment Company complies with all applicable
requirements of the Securities Act, the 1940 Act and any laws,
rules and regulations of governmental authorities with
jurisdiction over the Investment Company. All references to any
law in this Agreement shall be deemed to include reference to the
applicable rules and regulations promulgated under authority of
the law and all official interpretations of such law or rules or
regulations.
SECTION 3. RECORDKEEPING
(a) Prior to the commencement of Forum's
responsibilities under this Agreement, if applicable, each
Investment Company shall deliver or cause to be delivered over to
Forum (i) an accurate list of Shareholders of the Investment
Company, showing each Shareholder's address of record, number of
Shares owned and whether such Shares are represented by
outstanding share certificates and (ii) all Shareholder records,
files, and other materials necessary or appropriate for proper
performance of the functions assumed by Forum under this
Agreement (collectively referred to as the "Materials"). Each
Investment Company shall on behalf of each applicable Fund or
Class indemnify and hold Forum harmless from and against any and
all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to any
error, omission, inaccuracy or other deficiency of the Materials,
or out of the failure of the Investment Company to provide any
portion of the Materials or to provide any information in the
Investment Company's possession or control reasonably needed by
Forum to perform the services described in this Agreement.
(b) Forum shall keep records relating to the services to be
performed under this Agreement, in the form and manner as it may
deem advisable and as required by applicable law. To the extent
required by Section 31 of the 1940 Act, and the rules thereunder,
Forum agrees that all such records prepared or maintained by
Forum relating to the services to be performed by Forum under
this Agreement are the property of the Investment Company and
will be preserved, maintained and made available in accordance
with Section 31 of the 1940 Act and the rules thereunder, and
will be surrendered promptly to the Investment Company on and in
accordance with the Investment Company's request. Each
Investment Company and the Investment Company's authorized
representatives shall have access to Forum's records relating to
the services to be performed under this Agreement at all times
during Forum's normal business hours. Upon the reasonable
request of an Investment Company, copies of any such records
shall be provided promptly by Forum to the Investment Company or
the Investment Company's authorized representatives.
(c) Forum and each Investment Company agree that all books,
records, information, and data pertaining to the business of the
other party which are exchanged or received pursuant to the
negotiation or the carrying out of this Agreement shall remain
confidential, and shall not be voluntarily disclosed to any other
person, except as may be required by law.
(d) In case of any requests or demands for the inspection
of the Shareholder records of an Investment Company, Forum will
endeavor to notify the Investment Company and to secure
instructions from an authorized officer of the Investment Company
as to such inspection. Forum shall abide by the Investment
Company's instructions for granting or denying the inspection;
provided, however, that Forum may grant the inspection without
instructions if Forum is advised by counsel to Forum that failure
to do so will result in liability to Forum.
SECTION 4. ISSUANCE AND TRANSFER OF SHARES
(a) Forum shall make original issues of Shares of each
Fund and Class thereof in accordance with the Investment
Company's then current prospectus only upon receipt of (i)
instructions requesting the issuance, (ii) a certified copy of a
resolution of the Board authorizing the issuance, (iii) necessary
funds for the payment of any original issue tax applicable to
such Shares, and (iv) an opinion of the Investment Company's
counsel as to the legality and validity of the issuance, which
opinion may provide that it is contingent upon the filing by the
Investment Company of an appropriate notice with the SEC, as
required by Section 24 of the 1940 Act or the rules thereunder.
If the opinion described in (iv) above is contingent upon a
filing under Section 24 of the 1940 Act, the Investment Company
shall indemnify Forum for any liability arising from the failure
of the Investment Company to comply with that section or the
rules thereunder.
(b) Transfers of Shares of each Fund and Class thereof
shall be registered on the Shareholder records maintained by
Forum. In registering transfers of Shares, Forum may rely upon
the Uniform Commercial Code as in effect in the State of Maryland
for BBH Fund, Inc., BBH Common Settlement Fund, Inc. and BBH
Common Settlement Fund II, Inc.; and the Commonwealth of
Massachusetts for BBH Investment Company, or any other statutes
that, in the opinion of Forum's counsel, protect Forum and the
Investment Company from liability arising from (i) not requiring
complete documentation, (ii) registering a transfer without an
adverse claim inquiry, (iii) delaying registration for purposes
of such inquiry or (iv) refusing registration whenever an adverse
claim requires such refusal. As Transfer Agent, Forum will be
responsible for delivery to the transferor and transferee of such
documentation as is required by the Uniform Commercial Code.
SECTION 5. SHARE CERTIFICATES
(a) Each Investment Company shall furnish to Forum a
supply of blank share certificates of each Fund and Class thereof
and, from time to time, will renew such supply upon Forum's
request. Blank share certificates shall be signed manually or by
facsimile signatures of officers of the Investment Company
authorized to sign by the Organic Documents of the Investment
Company and, if required by the Organic Documents, shall bear the
Investment Company's seal or a facsimile thereof. Unless
otherwise directed by an Investment Company, Forum may issue or
register Share certificates reflecting the manual or facsimile
signature of an officer who has died, resigned or been removed by
the Investment Company.
(b) New Share certificates shall be issued by Forum
upon surrender of outstanding Share certificates in the form
deemed by Forum to be properly endorsed for transfer and
satisfactory evidence of compliance with all applicable laws
relating to the payment or collection of taxes. Forum shall
forward Share certificates in "non-negotiable" form by
first-class or registered mail, or by whatever means Forum deems
equally reliable and expeditious. Forum shall not mail Share
certificates in "negotiable" form unless requested in writing by
the Investment Company and fully indemnified by the Investment
Company to Forum's satisfaction.
(c) In the event that an Investment Company informs Forum
that any Fund or Class thereof does not issue share certificates,
Forum shall not issue any such share certificates and the
provisions of this Agreement relating to share certificates shall
not be applicable with respect to those Funds or Classes thereof.
SECTION 6. SHARE PURCHASES; ELIGIBILITY TO RECEIVE
DISTRIBUTIONS
(a) Shares shall be issued in accordance with the terms of
a Fund's or Class' prospectus after Forum or its agent receives
either:
(i) (A) an instruction directing investment in a Fund or
Class, (B) a check (other than a third party check) or a
wire or other electronic payment in the amount designated in
the instruction and (C), in the case of an initial purchase,
a completed account application; or
(ii) the information required for purchases pursuant to a
selected dealer agreement, processing organization
agreement, or a similar contract with a financial
intermediary.
(b) Shares issued in a Fund after receipt of a completed
purchase order shall be eligible to receive distributions of the
Fund at the time specified in the prospectus pursuant to which
the Shares are offered.
(c) Shareholder payments shall be considered Federal Funds
no later than on the day indicated below unless other times are
noted in the prospectus of the applicable Class or Fund:
(i) for a wire received, at the time of the receipt of the
wire;
(ii) for a check drawn on a member bank of the Federal
Reserve System, on the next Fund business day following
receipt of the check; and
(iii)for a check drawn on an institution that is not a
member of the Federal Reserve System, at such time as Forum
is credited with Federal Funds with respect to that check.
1. SECTION 7. FEES AND EXPENSES
(a) For the services provided by Forum pursuant to this
Agreement, each Investment Company, on behalf of each Fund,
agrees to pay Forum the fees set forth in Clauses (i) and (ii) of
Appendix A hereto. Fees will begin to accrue for each Fund on
the latter of the date of this Agreement or the date of
commencement of operations of the Fund. If fees begin to accrue
in the middle of a month or if this Agreement terminates before
the end of any month, all fees for the period from that date to
the end of that month or from the beginning of that month to the
date of termination, as the case may be, shall be prorated
according to the proportion that the period bears to the full
month in which the effectiveness or termination occurs. Upon the
termination of this Agreement with respect to a Fund, the
applicable Investment Company shall pay to Forum such
compensation as shall be payable prior to the effective date of
termination. Each Investment Company acknowledges that Forum may
from time to time earn money on amounts in the deposit accounts
maintained by Forum to service the Funds (and other clients
serviced by Forum).
(b) In connection with the services provided by Forum
pursuant to this Agreement, each Investment Company, on behalf of
each Fund, agrees to reimburse Forum for the expenses set forth
in Appendix A hereto. In addition, each Investment Company, on
behalf of the applicable Fund, shall reimburse Forum for all
reasonable incurred expenses and employee time (at 150% of
salary) attributable to any review of the Investment Company's
accounts and records by the Investment Company's independent
accountants or any regulatory body outside of routine and normal
periodic reviews. Should an Investment Company exercise its
right to terminate this Agreement, the Investment Company, on
behalf of the applicable Fund, shall reimburse Forum for all
reasonable incurred out-of-pocket expenses and employee time (at
150% of salary) associated with the copying and movement of
records and material to any successor person and providing
assistance to any successor person in the establishment of the
accounts and records necessary to carry out the successor's
responsibilities.
(c) All fees and reimbursements are payable in arrears on a
monthly basis and the applicable Investment Company, on behalf of
the applicable Fund, agrees to pay all fees and reimbursable
expenses within thirty (30) business days following receipt of
the respective billing notice.
2. SECTION 8. REPRESENTATIONS AND WARRANTIES
(a) Forum represents and warrants to each Investment
Company that:
(i) It is a limited liability company duly organized
and existing and in good standing under the laws of the
State of Delaware;
(ii) It is duly qualified to carry on its business in
the State of Maine;
(iii)It is empowered under applicable laws and by its
Operating Agreement to enter into this Agreement and
perform its duties under this Agreement;
(iv) All requisite corporate proceedings have been
taken to authorize it to enter into this Agreement and
perform its duties under this Agreement;
(v) It has access to the necessary facilities,
equipment, and personnel to perform its duties and
obligations under this Agreement;
(vi) This Agreement, when executed and delivered, will
constitute a legal, valid and binding obligation of
Forum, enforceable against Forum in accordance with its
terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general
application affecting the rights and remedies of
creditors and secured parties and to general equity
principals; and
(vii)It is registered as a transfer agent under ▇▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇.
(▇) Each Investment Company represents and warrants to
Forum that:
(i) It is duly organized and existing and in good
standing under the laws of the state in which it is
organized;
(ii) It is empowered under applicable laws and by its
Organic Documents to enter into this Agreement and
perform its duties under this Agreement;
(iii)All requisite corporate proceedings have been
taken to authorize it to enter into this Agreement and
perform its duties under this Agreement;
(iv) It is an open-end management investment company
registered under the 1940 Act;
(v) This Agreement, when executed and delivered, will
constitute a legal, valid and binding obligation of the
applicable Investment Company, enforceable against it
in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws
of general application affecting the rights and
remedies of creditors and secured parties and to
general equity principals; and
(vi) A registration statement under the Securities Act
is currently effective and will remain effective, and
appropriate State securities law filings have been made
and will continue to be made, with respect to all
Shares of the Funds and Classes of the Trust being
offered for sale.
SECTION 9. PROPRIETARY INFORMATION
(a) Each Investment Company acknowledges that the
databases, computer programs, screen formats, report formats,
interactive design techniques, and documentation manuals
maintained by Forum on databases under the control and ownership
of Forum or a third party constitute copyrighted, trade secret,
or other proprietary information (collectively, "Proprietary
Information") of substantial value to Forum or the third party.
Each Investment Company agrees to treat all Proprietary
Information as proprietary to Forum and further agrees that it
shall not divulge any Proprietary Information to any person or
organization except as may be provided under this Agreement.
(b) Forum acknowledges that the Shareholder list and all
information related to Shareholders furnished to Forum by an
Investment Company or by a Shareholder in connection with this
Agreement (collectively, "Customer Data") constitute proprietary
information of substantial value to the Investment Company. In
no event shall Proprietary Information be deemed Customer Data.
Forum agrees to treat all Customer Data as proprietary to the
Investment Company and further agrees that it shall not divulge
any Customer Data to any person or organization except as may be
provided under this Agreement or as may be directed by the
Investment Company.
3. SECTION 10. INDEMNIFICATION
(a) Forum shall not be responsible for, and each applicable
Investment Company shall on behalf of each applicable Fund or
Class thereof indemnify and hold Forum harmless from and against,
any and all losses, damages, costs, charges, reasonable counsel
fees, payments, expenses and liability arising out of or
attributable to:
(i) all actions of Forum or its agents or
subcontractors required to be taken pursuant to this
Agreement, provided that such actions are taken in good
faith and without negligence or willful misconduct;
(ii) the Investment Company's lack of good faith or the
Investment Company's negligence or willful misconduct;
(iii)the reasonable reliance on or use by Forum or its
agents or subcontractors of information, records,
documents or services which have been prepared,
maintained or performed by the Investment Company or
any other person or firm on behalf of the Investment
Company, including but not limited to any previous
transfer agent or registrar;
(iv) the reasonable reliance on, or the carrying out by
Forum or its agents or subcontractors of, any
instructions or requests of the Investment Company on
behalf of the applicable Fund; and
(v) the offer or sale of Shares in violation of any
requirement under the Federal securities laws or
regulations or the securities laws or regulations of
any State that such Shares be registered in such State
or in violation of any stop order or other
determination or ruling by any federal agency or any
State with respect to the offer or sale of such Shares
in such State.
(b) Forum shall indemnify and hold each Investment Company
and each Fund or Class thereof harmless from and against any and
all losses, damages, costs, charges, reasonable counsel fees,
payments, expenses and liability arising out of or attributed to
any action or failure or omission to act by Forum as a result of
Forum's lack of good faith, negligence or willful misconduct with
respect to the services performed under or in connection with
this Agreement.
(c) At any time Forum may apply to any officer of an
Investment Company for instructions, and may consult with legal
counsel to the Investment Company or to Forum with respect to any
matter arising in connection with the services to be performed by
Forum under this Agreement, and Forum and its agents or
subcontractors shall not be liable and shall be indemnified by
the Investment Company on behalf of the applicable Fund for any
action taken or omitted by it in reasonable reliance upon such
instructions or upon the advice of such counsel. Forum, its
agents and subcontractors shall be protected and indemnified in
acting upon (i) any paper or document furnished by or on behalf
of an Investment Company, reasonably believed by Forum to be
genuine and to have been signed by the proper person or persons,
(ii) any instruction, information, data, records or documents
provided Forum or its agents or subcontractors by machine
readable input, telex, CRT data entry or other similar means
authorized by an Investment Company, and (iii) any authorization,
instruction, approval, item or set of data, or information of any
kind transmitted to Forum in person or by telephone, vocal
telegram or other electronic means, reasonably believed by Forum
to be genuine and to have been given by the proper person or
persons. Forum shall not be held to have notice of any change of
authority of any person, until receipt of written notice thereof
from the Investment Company. Forum, its agents and
subcontractors shall also be protected and indemnified in
recognizing share certificates which are reasonably believed to
bear the proper manual or facsimile signatures of the officers of
the Investment Company, and the proper countersignature of any
former transfer agent or former registrar or of a co-transfer
agent or co-registrar of the Investment Company.
(d) If an Investment Company has the ability to originate
electronic instructions to Forum in order to (i) effect the
transfer or movement of cash or Shares or (ii) transmit
Shareholder information or other information, then in such event
Forum shall be entitled to rely on the validity and authenticity
of such instruction without undertaking any further inquiry as
long as such instruction is undertaken in conformity with
security procedures established by Forum from time to time.
(e) Each Investment Company has authorized or in the
future may authorize Forum to act as a "Mutual Fund Services
Member" for the Investment Company or various Funds. Fund/SERV
and Networking are services sponsored by the National Securities
Clearing Corporation ("NSCC") and as used herein have the
meanings as set forth in the then current edition of NSCC Rules
and Procedures published by NSCC or such other similar
publication as may exist from time to time. Each Investment
Company shall indemnify and hold Forum harmless from and against
any and all losses, damages, costs, charges, reasonable counsel
fees, payments, expenses and liability arising directly or
indirectly out of or attributed to any action or failure or
omission to act by NSCC.
(f) In order that the indemnification provisions contained
in this Section shall apply, upon the assertion of a claim for
which either party may be required to indemnify the other, the
party seeking indemnification shall promptly notify the other
party of such assertion, and shall keep the other party advised
with respect to all developments concerning such claim. The
party who may be required to indemnify shall have the option to
participate with the party seeking indemnification in the defense
of such claim or to defend against said claim in its own name or
in the name of the other party. In the event that Forum elects to
defend against a claim, the defense shall be conducted by counsel
chosen by Forum and reasonably satisfactory to the Agent. The
party seeking indemnification shall in no case confess any claim
or make any compromise in any case in which the other party may
be required to indemnify it except with the other party's prior
written consent.
SECTION 11. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect
to each Fund or Class on the earlier of July 10, 2000, or the
date on which the Trust's Registration Statement relating to the
Shares of the Fund or Class becomes effective or the date of the
commencement of operations of the Fund or Class. Upon
effectiveness of this Agreement, it shall supersede all previous
agreements between the parties hereto covering the subject matter
hereof insofar as such Agreement may have been deemed to relate
to the Funds.
(b) This Agreement shall continue in effect with
respect to a Fund until terminated.
(c) This Agreement may be terminated with respect to a
Fund at any time, without the payment of any penalty (i) by the
Board on sixty (60) days' written notice to Forum or (ii) by
Forum on sixty (60) days' written notice to the Investment
Company. Any termination shall be effective as of the date
specified in the notice. Upon notice of termination of this
Agreement by either party, Forum shall promptly transfer to the
successor transfer agent the original or copies of all books and
records maintained by Forum under this Agreement including, in
the case of records maintained on computer systems, copies of
such records in machine-readable form, and shall cooperate with,
and provide reasonable assistance to, the successor transfer
agent in the establishment of the books and records necessary to
carry out the successor transfer agent's responsibilities.
(d) The obligations of Sections 3, 7, 8, 9, 10, 14, 15, and
17 shall survive any termination of this Agreement.
4. SECTION 12. ADDITIONAL FUNDS AND CLASSES
5.
6. In the event that an Investment Company establishes one
or more series of Shares or one or more classes of Shares
after the effectiveness of this Agreement, such series of
Shares or classes of Shares, as the case may be, shall
become Funds and Classes under this Agreement. Forum or an
Investment Company may elect not to make any such series or
classes subject to this Agreement.
7. SECTION 13. ASSIGNMENT
8.
9. Except as otherwise provided in this Agreement, neither
this Agreement nor any rights or obligations under this
Agreement may be assigned by either party without the
written consent of the other party. This Agreement shall
inure to the benefit of and be binding upon the parties and
their respective permitted successors and assigns. Forum
may, without further consent on the part of the Trust,
subcontract for the performance hereof with any entity,
including affiliated persons of Forum; provided however,
that Forum shall be as fully responsible to the Trust for
the acts and omissions of any subcontractor as Forum is for
its own acts and omissions.
10. SECTION 14. FORCE MAJEURE
11.
12. Forum shall not be responsible or liable for any
failure or delay in performance of its obligations under
this Agreement arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military
authority, national emergencies, labor difficulties, fire,
mechanical breakdowns, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails or any
transportation medium, communication system or power supply.
SECTION 15. LIMITATION OF SHAREHOLDER AND
TRUSTEE/Director LIABILITY
The Trustees/Directors of each Investment Company and the
shareholders of each Fund shall not be liable for any obligations
of the Investment Company or of the Funds under this Agreement,
and Forum agrees that, in asserting any rights or claims under
this Agreement, it shall look only to the assets and property of
the Investment Company or the Fund to which Forum's rights or
claims relate in settlement of such rights or claims, and not to
the Trustees/Directors of the Investment Company or the
shareholders of the Funds.
SECTION 16. TAXES
Forum shall not be liable for any taxes, assessments or
governmental charges that may be levied or assessed on any basis
whatsoever in connection with any Investment Company or any
Shareholder or any purchase of Shares, excluding taxes assessed
against Forum for compensation received by it under this
Agreement.
SECTION 17. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to
another party for consequential damages under any provision of
this Agreement.
(b) Except for Appendix A to add new Funds and Classes
in accordance with Section 12, no provisions of this Agreement
may be amended or modified in any manner except by a written
agreement properly authorized and executed by both parties hereto.
(c) This Agreement shall be governed by, and the provisions
of this Agreement shall be construed and interpreted under and in
accordance with, the laws of the State of New York, except as
otherwise provided in Section 4(b).
(d) This Agreement constitutes the entire agreement between
the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof whether oral or written.
(e) This Agreement may be executed by the parties hereto on
any number of counterparts, and all of the counterparts taken
together shall be deemed to constitute one and the same
instrument.
(f) If any part, term or provision of this Agreement is
held to be illegal, in conflict with any law or otherwise
invalid, the remaining portion or portions shall be considered
severable and not be affected, and the rights and obligations of
the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be
illegal or invalid. This Agreement shall be construed as if
drafted jointly by both Forum and each Investment Company and no
presumptions shall arise favoring any party by virtue of
authorship of any provision of this Agreement.
(g) Section and paragraph headings in this Agreement are
included for convenience only and are not to be used to construe
or interpret this Agreement.
(h) Notices, requests, instructions and communications
received by the parties at their respective principal addresses,
or at such other address as a party may have designated in
writing, shall be deemed to have been properly given.
(i) Nothing contained in this Agreement is intended to
or shall require Forum, in any capacity hereunder, to perform any
functions or duties on any day other than a Fund business day.
Functions or duties normally scheduled to be performed on any day
which is not a Fund business day shall be performed on, and as
of, the next Fund business day, unless otherwise required by law.
(j) Notwithstanding any other provision of this Agreement,
the parties agree that the assets and liabilities of each Fund of
each Investment Company 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.
(k) No affiliated person (as that term is defined in
the 1940 Act), employee, agent, director, officer or manager of
Forum shall be liable at law or in equity for Forum's obligations
under this Agreement.
(l) Each of the undersigned expressly warrants and
represents that they have full power and authority to sign this
Agreement on behalf of the party indicated and that their
signature will bind the party indicated to the terms hereof and
each party hereto warrants and represents that this Agreement,
when executed and delivered, will constitute a legal, valid and
binding obligation of the party, enforceable against the party in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured
parties.
(m) The terms and "affiliated person," "assignment"
and "vote of a majority of the outstanding voting securities"
shall have the meanings ascribed thereto in the 1940 Act.
(n) 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 executed in their names and on their behalf by
and through their duly authorized persons, as of the day and year
first above written.
BBH FUND, Inc.
BBH Trust
BBH COMMON SETTLEMENT FUND, INC.
BBH COMMON SETTLEMENT FUND ii, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FORUM SHAREHOLDER SERVICES, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
TRANSFER AGENCY AND SERVICE AGREEMENT
Appendix A
a. Fees and Expenses
(i) Base Fee:
BBH Fund, Inc. and BBH Trust:
Fees per
CUSIP.............................................................$1,000/month
BBH Common Settlement Fund, Inc. and BBH Common Settlement
Fund II, Inc.:
Fees per
CUSIP..............................................................$500/month
(ii) Shareholder Account Fees:
(a) Non- NSCC networked
account..............................$1.50/account/month
(b) NSCC networked
account......................................$0.75/account/month
Shareholder account fees are based upon the number of
Shareholder accounts as of the last Fund Business Day of the
prior month.
(iii) Out-Of-Pocket and Related Expenses:
Each applicable Investment Company on behalf of the
applicable Fund, shall reimburse Forum for all out-of-pocket
and ancillary expenses in providing the services described
in this Agreement, including but not limited to, the cost of
(or appropriate share of the cost of): (i) statement,
confirmation, envelope and stationary stock, (ii) share
certificates, (iii) printing of checks and drafts, (iv)
postage, (v) telecommunications, (vi) banking services (DDA
account, wire and ACH, check and draft clearing and lock box
fees and charges), (vii) NSCC Mutual Fund Service Member
fees and expenses, (viii) outside proxy solicitors and
tabulators, (ix) proxy solicitation fees and (ix) microfilm
and microfiche. In addition, any other expenses incurred by
Forum at the request or with the consent of the Investment
Company will be reimbursed by the applicable Fund.
(iv) Other Expenses
BBH Common Settlement II Fund, Inc. shall compensate Forum
for additional processing arising from the late receipt of
prices, reprocessing of NAVs, and adjustment of accrual
rates. The schedule of these costs is as follows:
(a) Late Prices (received by Forum after 6:30 pm EST)
$250 per occurrence
(b) NAV Reprocess........................$500 per reprocess
(c) Accrual Adjustment*..................$500 per adjustment
* Accrual adjustment fees are based upon the understanding
that there is only one shareholder omnibus position in this
Fund. Should there be more than one shareholder position in
the Fund, the accrual adjustment fee will be $750 per
adjustment.
BBH TRUST
BBH FUND, INC.
BBH COMMON SETTLEMENT FUND, INC.
BBH COMMON SETTLEMENT FUND II, INC.
ADDENDUM TO TRANSFER AGENCY AND SERVICES AGREEMENT
ADDENDUM, dated as of August 6, 2002, to the Transfer Agency
and Services Agreement dated as of July 1, 2000, and amended and
restated as of August 4, 2003, (the "Agreement") by and among,
severally and not jointly, BBH Fund, Inc., a Maryland
corporation, BBH Trust, a Massachusetts trust, BBH Common
Settlement Fund, Inc. a Maryland corporation, and BBH Common
Settlement Fund II, Inc., a Maryland corporation, with their
principal office and place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (each, an "Investment Company"), and Forum
Shareholder Services, LLC, a Delaware limited liability company
with its principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Forum").
WHEREAS, each Investment Company is subject to, and
has adopted procedures reasonably designed to ensure its
compliance with, all applicable anti-money laundering laws,
regulations, rules and government guidance, including the
reporting, recordkeeping and compliance requirements of the Bank
Secrecy Act ("BSA"), as amended by the USA PATRIOT Act of 2001
(together with its implementing regulations, the "Patriot Act"),
its implementing regulations, and related governmental and
self-regulatory organization rules and regulations; and
WHEREAS, in accordance with its obligation to provide
transfer agency services under the Agreement, Forum has
instituted an anti-money laundering program that is intended to
ensure that each Investment Company is in material compliance
with all applicable anti-money laundering laws, regulations,
rules and government guidance related to the services to be
provided by Forum under the Agreement;
NOW, THEREFORE, the Agreement is hereby amended as
follows:
1. Forum agrees to allow appropriate federal
examiners to (a) obtain and inspect information and records
maintained by Forum under the Agreement relating to each
Investment Company 's anti-money laundering program and (b)
inspect Forum for purposes of the Investment Company's anti-money
laundering program.
2. Each party agrees to notify the other party
promptly about any known suspicious activities related to open
accounts in the Funds.
IN WITNESS WHEREOF, the parties hereto have caused this
Addendum to be executed in their names and on their behalf by and
through their authorized persons, as of the day and year first
above written.
BBH FUND, INC.
BBH TRUST
BBH COMMON SETTLEMENT FUND, INC.
BBH COMMON SETTLEMENT FUND II, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FORUM SHAREHOLDER SERVICES, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director