Exhibit (d) (vi) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
ADVISORY AGREEMENT
BBH FUND, INC.
BBH TRUST
BBH MONEY MARKET PORTFOLIO
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, is amended and restated this January 12, 2004, severally and
not jointly, among BBH FUND, INC., a Maryland corporation , BBH TRUST, a
Massachusetts business trust, and BBH Money Market Portfolio, a New York
trust (each an "Investment Company"), on behalf of those funds listed on
Exhibit A hereto (the "Funds") each a series of the Investment Company, and
BROWN BROTHERS XXXXXXXX & CO., a New York limited partnership (the
"Adviser"). This Agreement was initially effective with respect to each Fund
on the date set forth on Exhibit A.
WHEREAS, the Investment Company is an open-end management investment
company registered under the Investment Company Act of 1940, as amended (the
" 1940 Act"); and
WHEREAS, the Investment Company wishes to retain the Adviser to render
investment advisory services to the Funds, and the Adviser is willing to
render such services;
NOW, THEREFORE, in consideration of the premises and mutual promises
hereinafter set forth, the parties hereto agree as follows:
1. The Investment Company hereby appoints the Adviser to act as
investment adviser to the Funds for the period and on the terms set forth in
this Agreement. The Adviser accepts such appointment and agrees to render
the services herein set forth, for the compensation herein provided.
2. Subject to the general supervision of the Trustees/Directors of the
Investment Company (the "Board"), the Adviser shall manage the investment
operations of the Funds and the composition of the Funds' portfolios of
securities and investments, including cash, the purchase, retention and
disposition thereof and agreements relating thereto, in accordance with the
Funds' investment objective and policies as stated in the
Prospectuses (as defined in paragraph 3 of this Agreement) and subject to the
following understandings:
(a) the Adviser shall furnish a continuous investment program
for each Fund's portfolio and determine from time to time what
investments or securities will be purchased, retained, sold or lent by
the Funds, and what portion of the assets will be invested or held
uninvested as cash;
(b) the Adviser shall use the same skill and care in the
management of each Fund's portfolio as it uses in the administration of
other accounts for which it has investment responsibility as agent;
(c) the Adviser, in the performance of its duties and
obligations under this Agreement, shall act in conformity with the
Investment Company's Declaration of Trust/Articles of Incorporation and
By-Laws and the Prospectuses of the Funds and with the instructions and
directions of the Directors of the Investment Company and will conform
to and comply with the requirements of the 1940 Act and all other
applicable federal and state laws and regulations including, without
limitation, the regulations and rulings of the New York State Banking
Department;
(d) the Adviser shall determine the securities to be purchased,
sold or lent by the Funds and as agent for the Funds will effect
portfolio transactions pursuant to its determinations either directly
with the issuer or with any broker and/or dealer in such securities; in
placing orders with brokers and or dealers the Adviser intends to seek
best price and execution for purchases and sales; the Adviser shall
also make recommendations regarding whether or not the Funds shall
enter into repurchase or reverse repurchase agreements and interest
rate futures contracts.
On occasions when the Adviser deems the purchase or sale of a security
to be in the best interest of the Funds as well as other customers, the
Adviser, may, to the extent permitted by applicable laws and regulations, but
shall not be obligated to, aggregate the securities to be so sold or
purchased in order to obtain the best execution and lower brokerage
commissions, if any. In such event, allocation of the securities so
purchased or sold, as well as the expenses incurred in the transaction, will
be made by the Adviser in the manner it considers to be the most equitable
and consistent with its fiduciary obligations to the Funds and to such other
customers;
(e) the Adviser shall maintain books and records with respect
to the Funds' securities transactions and shall render to the
Investment Company's Trustees such periodic and special reports as the
Trustees may reasonably request; and
(f) the investment management services of the Adviser to the
Funds under this Agreement are not to be deemed exclusive, and the
Adviser shall be free to render similar services to others.
3. The Investment Company has delivered copies of each of the
following documents to the Adviser and will promptly notify and deliver to it
all future amendments and supplements, if any:
(a) Declaration of Trust/Articles of Incorporation of the
Investment Company and amendments thereto (such Declaration of
Trust/Articles of Incorporation and amendments, as presently in effect
and further amended from time to time, are herein called the
"Organizational Document");
(b) By-Laws of the Investment Company (such By-Laws, as
presently in effect and as amended from time to time, are herein called the
"By-Laws");
(c) Certified resolutions of the Board of the Investment
Company authorizing the appointment of the Adviser and approving the
form of this Agreement;
(d) Registration Statement under the 1940 Act and the
Securities Act of 1933, as amended, on Form N-1A (the "Registration
Statement") as filed with the Securities and Exchange Commission (the
"Commission") relating to the Investment Company and the Funds' shares,
and all amendments thereto;
(e) Notification of Registration of the Investment Company
under the 1940 Act on Form N-8A as filed with the Commission; and
(f) Prospectuses of the Funds (such prospectuses, as presently
in effect and as amended or supplemented with respect to the Funds from
time to time, is herein called the "Prospectuses").
4. The Adviser shall keep the Funds' books and records required to
be maintained by it pursuant to paragraph 2(e). The Adviser agrees that all
records which it maintains for each Fund is the property of the Fund and it
will promptly surrender any of such records to the Fund upon the Fund's
request. The Adviser further agrees to preserve for the periods prescribed
by Rule 31a-2 of the Commission under the 1940 Act any such records as are
required to be maintained by the Adviser with respect to the Funds by Rule
31a-1 of the Commission under the 1940 Act.
5. During the term of this Agreement the Adviser will pay all
expenses incurred by it in connection with its activities under this
Agreement other than the cost of securities and investments purchased for the
Funds (including taxes and brokerage commissions, if any).
6. For the services provided and the expenses borne pursuant to this
Agreement, the Adviser will receive from each Fund as full compensation
therefor a fee as set forth on Exhibit A attached hereto. This fee will be
computed based on the net assets as of 4:00 P.M. New York time on each
business and will be paid to the Adviser monthly during the succeeding
calendar month. In the event the expenses of any Fund for any fiscal year
(including the fees payable to the Adviser and the Investment Company's
administrator (the "Administrator"), but excluding interest, taxes, brokerage
commissions and litigation and indemnification expenses and other
extraordinary expenses not incurred in the ordinary course of such Fund's
business) exceed the lowest applicable annual expense limitation established
pursuant to the statutes or regulations of any jurisdiction in which Shares
of such Fund are then qualified for offer and sale, the compensation due to
the Adviser hereunder will be reduced by 50% (or 100% if the Investment
Company does not have an Administrator) of the amount of such excess, or if
such excess expenses exceed the amount of the fees payable to the Adviser and
the Administrator, the Adviser shall reimburse such Fund for 50% (or 100% if
the Investment Company does not have an Administrator) of the amount by which
such expenses exceed such fees. Any reduction in the fee payable and any
payment by the Adviser to the Funds shall be made monthly and subject to
readjustment during the year.
7. The Adviser shall not be liable for any error of judgment or
mistake of law or for any loss suffered by any Fund in connection with the
matters to which this Agreement relates, except a loss resulting from a
breach of fiduciary duty with respect to the receipt of compensation for
services (in which case any award of damages shall be limited to the period
and the amount set forth in Section 36(b)(3) of the 1940 Act) or a loss
resulting from willful misfeasance, bad faith or gross negligence on its part
in the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement.
8. This Agreement shall continue in effect for two years from the
date of its execution with respect to any Fund, and thereafter only so long
as its continuance is specifically approved at least annually in conformity
with the requirements of the 1940 Act; provided, however, that this Agreement
may be terminated with respect to any Fund by the Investment Company at any
time, without the payment of any penalty, by vote of a majority of all the
Board of the Investment Company or by "vote of a majority of the outstanding
voting securities" of the Fund on 60 days written notice to the Adviser, or
by the Adviser at any time, without the payment of any penalty, on 90 days
written notice to the Investment Company. This Agreement will automatically
and immediately terminate in the event of its "assignment".
9. The Adviser shall for all purposes herein be deemed to be an
independent contractor and shall, unless otherwise expressly provided herein
or authorized by the Board of the Investment Company from time to time, have
no authority to act for or represent the Funds or the Investment Company in
any way or otherwise be deemed an agent of the Funds or the Investment
Company.
10. This Agreement may be amended by mutual consent, provided that
any material amendment hereto shall be approved (a) by vote of a majority of
those members of the Board of the Investment Company who are not parties to
this Agreement or "interested persons" of any such party, cast in person at a
meeting called for the purpose of voting on such amendment, and (b) by "vote
of a majority of the outstanding voting securities" of the Funds.
11. As used in this Agreement, the terms "assignment", "interested
persons" and "vote of a majority of the outstanding voting securities" shall
have the meanings assigned to them respectively in the 1940 Act.
12. Notices of any kind to be given to the Adviser by the Investment
Company shall be in writing and shall be duly given if mailed or delivered to
the Adviser at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Treasurer,
or at such other address or to such other individual as shall be specified by
the Adviser to the Investment Company. Notices of any kind to be given to
the Investment Company by the Adviser shall be in writing and shall be duly
given if mailed or delivered to the Investment Company BBH Trust or BBH Fund,
Inc. at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and to BBH Money Market
Portfolio at Xxxxxxxxxxx House, Fort Street, P.O. Box 705, Xxxxxx Town, Grand
Cayman, BWUI, Attention: Secretary, or at such other address or to such
other individual as shall be specified by the Investment Company to the
Adviser.
13. The Board has authorized the execution of this Agreement in their
capacity as Trustees/Directors and not individually, and the Adviser agrees
that neither the Investment Company's shareholders nor the Trustees/Directors
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 the shareholders, Directors,
Trustees, officers, employees, representatives and agents of the Investment
Company shall not be personally liable hereunder, and that the Adviser shall
look solely to the property of the Investment Company for the satisfaction of
any claim hereunder.
14. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. 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 instrument to
be executed by their officers or Partners designated below on the day and
year first above written.
BBH FUND, INC. BROWN BROTHERS XXXXXXXX & CO.
BBH TRUST
BBH MONEY MARKET PORTFOLIO
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx x. Xxxxxxx
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Name: Xxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxxx
Title: Vice President Title: Partner
