EXHIBIT (H) (III) UNDER FORM N-1A
EXHIBIT 10 UNDER ITEM 601/REG. S-K
ACCOUNTING AGENCY AGREEMENT
THIS ACCOUNTING AGENCY AGREEMENT is made as of February 1, 2007, between
XXXXX BROTHERS XXXXXXXX & CO., a limited partnership organized under the laws of
the State of New York ("BBH"), and BBH TRUST (on behalf of each of its 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 Funds will (i) furnish BBH with properly
certified or authenticated copies of resolutions of the Funds' Board of 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 Funds' Board of 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 Funds 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 Funds'
Declaration of Trust and By-Laws, as they may from time to time be amended and
delivered to BBH, (2) to votes of the Board of Trustees of the Funds 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 Funds, BBH shall verify that portfolio transactions have been
recorded in accordance with the Funds' instructions and are reconciled with the
Funds' trading records.
In computing the net asset value, BBH shall rely upon information (1) as
to accrual of liabilities of the Funds and as to liabilities of the Funds 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 Funds, (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 Funds, (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 Funds
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
Funds and BBH. In addition to such fee, BBH shall xxxx the Funds 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 Funds 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 Funds or any shareholder or former shareholder of the Funds 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 Funds, any present or former shareholder of the Funds 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 Funds 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 Funds, 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 Funds shall incur in
connection with correcting the records of the Funds 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 Funds affected by such error).
Without limiting the foregoing, BBH shall not be held accountable or
liable to the Funds, 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 Funds 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 Funds 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 Funds 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 Funds 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 Funds and BBH will consider
such relevant factors as the amount of the loss involved, the Funds' 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
Funds 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 the Funds 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 the Funds addressed to the Fund at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 or to such other address as the Fund may have designated to BBH in
writing, or to BBH at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Manager,
Fund Accounting Department, or to such other address as BBH may have designated
to the Fund in writing, shall be deemed to have been properly delivered or given
hereunder to the respective addressee.
12. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Fund and BBH and their respective successors and assigns,
provided that no party hereto may assign this Agreement or any of its rights or
obligations hereunder without the written consent of the other party.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and which
collectively shall be deemed to constitute only one instrument. This Agreement
shall become effective when one or more counterparts have been signed and
delivered by each of the parties.
14. Exclusivity. The services furnished by BBH hereunder are not to be
deemed exclusive, and BBH shall be free to furnish similar services to others.
15. Authorization. The Funds hereby represent and warrant that the
execution and delivery of this Agreement have been authorized by the Funds'
Board of 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 the
Funds 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 the Funds
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.
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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.
BBH TRUST XXXXX BROTHERS XXXXXXXX & CO.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: President Title:Partner
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APPENDIX A
THE FOLLOWING AUTHORIZED SOURCES ARE TO BE USED FOR PRICING AND FOREIGN EXCHANGE
QUOTATIONS, CORPORATE ACTIONS, DIVIDENDS AND RIGHTS OFFERINGS:
AUTHORIZED SOURCES
BLOOMBERG
EXTEL (LONDON)
FUND MANAGERS
INTERACTIVE DATA CORPORATION
REPUTABLE BROKERS
REUTERS
SUBCUSTODIAN BANKS
TELEKURS
VALORINFORM (GENEVA)
REPUTABLE FINANCIAL PUBLICATIONS
STOCK EXCHANGES
FINANCIAL INFORMATION INC. CARD
XX XXXXX
FRI CORPORATION
XXXXXXX XXXXX PRICING SERVICE
XXXXXX
BRIDGE
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