Exhibit (d)(31)
INVESTMENT ADVISORY AGREEMENT
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Institutional Liquidity Fund for Credit Unions
AGREEMENT made as of ____________________ between THE RBB
FUND, INC., a Maryland corporation (herein called the "Fund"), and WesCorp
Investment Services, LLC (herein called the "Investment Advisor").
WHEREAS, the Fund is registered as an open-end, management
investment company under the Investment Company Act of 1940 (the "1940 Act") and
currently offers or proposes to offer shares representing interests in separate
investment portfolios; and
WHEREAS, the Fund desires to retain the Investment Advisor to
render certain investment advisory services to the Fund with respect to the
Fund's Institutional Liquidity Fund for Credit Unions (the "Portfolio"), and the
Investment Advisor is willing to so render such services.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, and intending to be legally bound hereby, it is
agreed between the parties hereto as follows:
1. APPOINTMENT. The Fund hereby appoints the Investment
Advisor to act as investment advisor for the Portfolio for the period and on the
terms set forth in this Agreement. The Investment Advisor accepts such
appointment and agrees to render the services herein set forth, for the
compensation herein provided.
2. DELIVERY OF DOCUMENTS. The Fund has furnished the
Investment Advisor with copies properly certified or authenticated of each of
the following:
(a) Resolutions of the Board of Directors of the Fund
authorizing the appointment of the Investment Advisor and the execution and
delivery of this Agreement;
(b) A prospectus and statement of additional
information relating to shares representing interests in the Portfolio of the
Fund in effect under the Securities Act of 1933 (the "1933 Act") (such
prospectus and statement of additional information, as presently in effect and
as they shall from time to time be amended and supplemented, are herein
collectively called the "Prospectus" and "Statement of Additional Information,"
respectively).
The Fund will promptly furnish the Investment Advisor from
time to time with copies, properly certified or authenticated, of all amendments
of or supplements to the foregoing, if any.
In addition to the foregoing, the Fund will also provide the
Investment Advisor with copies of the Fund's Charter and By-laws, and any
registration statement or service contracts related to the Portfolio, and will
promptly furnish the Investment Advisor with any amendments of or supplements to
such documents.
3. MANAGEMENT OF THE PORTFOLIO. Subject to the supervision of
the Board of Directors of the Fund, the Investment Advisor will provide for the
overall management of the Portfolio including (i) the provision of a continuous
investment program for the Portfolio, including investment research and
management with respect to all securities, investments, cash and cash
equivalents in the Portfolio, (ii) the determination from time to time of what
securities and other investments will be purchased, retained, or sold by the
Fund for the Portfolio, and (iii) the placement from time to time of orders for
all purchases and sales made for the Portfolio. The Investment Advisor will
provide the services rendered by it hereunder in accordance with the Portfolio's
investment objectives, restrictions and policies as stated in the applicable
Prospectus and the Statement of Additional Information, provided that the
Investment Advisor has actual notice or knowledge of any changes by the Board of
Directors to such investment objectives, restrictions or policies. The
Investment Advisor further agrees that it will render to the Fund's Board of
Directors such periodic and special reports regarding the performance of its
duties under this Agreement as the Board may reasonably request. The Investment
Advisor agrees to provide to the Fund (or its agents and service providers)
prompt and accurate data with respect to the Portfolio's transactions and, where
not otherwise available, the daily valuation of securities in the Portfolio.
4. BROKERAGE. Subject to the Investment Advisor's obligation
to obtain best price and execution, the Investment Advisor shall have full
discretion to select brokers or dealers to effect the purchase and sale of
securities. When the Investment Advisor places orders for the purchase or sale
of securities for the Portfolio, in selecting brokers or dealers to execute such
orders, the Investment Advisor is expressly authorized to consider the fact that
a broker or dealer has furnished statistical, research or other information or
services for the benefit of the Portfolio directly or indirectly. Without
limiting the generality of the foregoing, the Investment Advisor is authorized
to cause the Portfolio to pay brokerage commissions which may be in excess of
the lowest rates available to brokers who execute transactions for the Portfolio
or who otherwise provide brokerage and research services utilized by the
Investment Advisor, provided that the Investment Advisor determines in good
faith that the amount of each such commission paid to a broker is reasonable in
relation to the value of the brokerage and research services provided by such
broker viewed in terms of either the particular transaction to which the
commission relates or the Investment Advisor's overall responsibilities with
respect to accounts as to which the Investment Advisor exercises investment
discretion. The Investment Advisor may aggregate securities orders so long as
the Investment Advisor adheres to a policy of allocating investment
opportunities to the Portfolio over a period of time on a fair and equitable
basis relative to other clients. In no instance will the Portfolio's securities
be purchased from or sold to the Fund's principal underwriter, the Investment
Advisor, or any affiliated person thereof, except to the extent permitted by SEC
exemptive order or by applicable law.
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To the extent applicable, the Investment Advisor shall report
to the Board of Directors of the Fund at least quarterly with respect to
brokerage transactions that were entered into by the Investment Advisor,
pursuant to the foregoing paragraph, and shall certify to the Board that the
commissions paid were reasonable in terms either of that transaction or the
overall responsibilities of the Advisor to the Fund and the Investment Advisor's
other clients, that the total commissions paid by the Fund were reasonable in
relation to the benefits to the Fund over the long term, and that such
commissions were paid in compliance with Section 28(e) of the Securities
Exchange Act of 1934.
5. CONFORMITY WITH LAW; CONFIDENTIALITY. The Investment
Advisor further agrees that it will comply with all applicable rules and
regulations of all federal regulatory agencies having jurisdiction over the
Investment Advisor in the performance of its duties hereunder. The Investment
Advisor will treat confidentially and as proprietary information of the Fund all
records and other information relating to the Fund and will not use such records
and information for any purpose other than performance of its responsibilities
and duties hereunder, except after prior notification to and approval in writing
by the Fund, which approval shall not be unreasonably withheld and may not be
withheld where the Investment Advisor may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by the Fund.
6. SERVICES NOT EXCLUSIVE. The Investment Advisor and its
officers may act and continue to act as investment managers for others, and
nothing in this Agreement shall in any way be deemed to restrict the right of
the Investment Advisor to perform investment management or other services for
any other person or entity, and the performance of such services for others
shall not be deemed to violate or give rise to any duty or obligation to the
Portfolio or the Fund.
Nothing in this Agreement shall limit or restrict the
Investment Advisor or any of its partners, officers, affiliates or employees
from buying, selling or trading in any securities for its or their own account.
The Fund acknowledges that the Investment Advisor and its partners, officers,
affiliates, employees and other clients may, at any time, have, acquire,
increase, decrease, or dispose of positions in investments which are at the same
time being acquired or disposed of for the Portfolio. The Investment Advisor
shall have no obligation to acquire for the Portfolio a position in any
investment which the Investment Advisor, its partners, officers, affiliates or
employees may acquire for its or their own accounts or for the account of
another client, so long as it continues to be the policy and practice of the
Investment Advisor not to favor or disfavor consistently or consciously any
client or class of clients in the allocation of investment opportunities so
that, to the extent practical, such opportunities will be allocated among
clients over a period of time on a fair and equitable basis.
The Investment Advisor agrees that this Paragraph 6 does not
constitute a waiver by the Fund of the obligations imposed upon the Investment
Advisor to comply with Sections 17(d) and 17(j) of the 1940 Act, and the rules
thereunder, nor constitute a waiver by the Fund of the obligations imposed upon
the Investment Advisor under Section 206 of the Investment Advisers Act of 1940
and the rules thereunder. Further, the Investment Advisor agrees that this
Paragraph 6 does not constitute a waiver by the Fund of the fiduciary obligation
of the Investment Advisor arising under federal or state law, including Section
36 of the 1940 Act. The Investment Advisor agrees that this Paragraph 6 shall be
interpreted consistent with the provisions of Section 17(i) of the 1940 Act.
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7. BOOKS AND RECORDS. In compliance with the requirements of
Rule 31a-3 under the 1940 Act, the Investment Advisor hereby agrees that all
records which it maintains for the Portfolio are the property of the Fund and
further agrees to surrender promptly to the Fund any of such records upon the
Fund's request. The Investment Advisor further agrees to preserve for the
periods prescribed by Rule 31a-2 under the 1940 Act the records required to be
maintained by Rule 31a-1 under the 1940 Act.
8. EXPENSES. During the term of this Agreement, the Investment
Advisor will pay all expenses incurred by it in connection with its activities
under this Agreement. The Portfolio shall bear all of its own expenses not
specifically assumed by the Investment Advisor. General expenses of the Fund not
readily identifiable as belonging to a portfolio of the Fund shall be allocated
among all investment portfolios by or under the direction of the Fund's Board of
Directors in such manner as the Board determines to be fair and equitable.
Expenses borne by the Portfolio shall include, but are not limited to, the
following (or the portfolio's share of the following): (a) the cost (including
brokerage commissions) of securities purchased or sold by the Portfolio and any
losses incurred in connection therewith; (b) fees payable to and expenses
incurred on behalf of the Portfolio by the Investment Advisor; (c) filing fees
and expenses relating to the registration and qualification of the Fund and the
Portfolio's shares under federal and/or state securities laws and maintaining
such registrations and qualifications; (d) fees and salaries payable to the
Fund's directors and officers; (e) taxes (including any income or franchise
taxes) and governmental fees; (f) costs of any liability and other insurance or
fidelity bonds; (g) any costs, expenses or losses arising out of a liability of
or claim for damages or other relief asserted against the Fund or the Portfolio
for violation of any law; (h) legal, accounting and auditing expenses, including
legal fees of special counsel for the independent directors; (i) charges of
custodians and other agents; (j) expenses of setting in type and printing
prospectuses, statements of additional information and supplements thereto for
existing shareholders, reports, statements, and confirmations to shareholders
and proxy material that are not attributable to a class of the Fund; (k) costs
of mailing prospectuses, statements of additional information and supplements
thereto to existing shareholders, as well as reports to shareholders and proxy
material that are not attributable to a class of the Fund; (l) any extraordinary
expenses; (m) fees, voluntary assessments and other expenses incurred in
connection with membership in investment company organizations; (n) costs of
mailing and tabulating proxies and costs of shareholders' and directors'
meetings; (o) costs of independent pricing services to value a portfolio's
securities; and (p) the costs of investment company literature and other
publications provided by the Fund to its directors and officers. Distribution
expenses, transfer agency expenses, expenses of preparation, printing and
mailing, prospectuses, statements of additional information, proxy statements
and reports to shareholders, and organizational expenses and registration fees,
identified as belonging to a particular class of the Fund are allocated to such
class.
9. VOTING. The Investment Advisor shall have the authority to
vote as agent for the Fund, either in person or by proxy, tender and take all
actions incident to the ownership of all securities in which the Portfolio's
assets may be invested from time to time, subject to such policies and
procedures as the Board of Directors of the Fund may adopt from time to time.
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10. RESERVATION OF NAME. The Investment Advisor shall at all
times have all rights in and to the Portfolio's name and all investment models
used by or on behalf of the Portfolio. The Investment Advisor may use the
Portfolio's name or any portion thereof in connection with any other mutual fund
or business activity without the consent of any shareholder and the Fund shall
execute and deliver any and all documents required to indicate the consent of
the Fund to such use.
No public reference to, or description of the Investment
Advisor or its methodology or work shall be made by the Fund, whether in the
Prospectus, Statement of Additional Information or otherwise, without the prior
written consent of the Investment Advisor, which consent shall not be
unreasonably withheld. In each case, the Fund shall provide the Investment
Advisor a reasonable opportunity to review any such reference or description
before being asked for such consent.
11. COMPENSATION.
(a) For the services provided and the expenses
assumed pursuant to this Agreement with respect to the Portfolio, the Fund will
pay the Investment Advisor from the assets of the Portfolio and the Investment
Advisor will accept as full compensation therefor a fee, computed daily and
payable monthly, at the annual rate of _____% of the Portfolio's average daily
net assets.
(b) The fee attributable to the Portfolio shall be
satisfied only against assets of the Portfolio and not against the assets of any
other investment portfolio of the Fund.
12. LIMITATION OF LIABILITY OF THE INVESTMENT ADVISOR. The
Investment Advisor shall not be liable for any error of judgment or mistake of
law or for any loss suffered by the 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 or a loss resulting
from willful misfeasance, bad faith or gross negligence on the part of the
Investment Advisor in the performance of its duties or from reckless disregard
by it of its obligations and duties under this Agreement.
The limitations on liability and indemnification provisions of
this paragraph 12 shall not be applicable to any losses, claims, damages,
liabilities or expenses arising from the Investment Advisor's rights to the
Portfolio's name. The Investment Advisor shall indemnify and hold harmless the
Fund and the Portfolio for any claims arising from the use of the term
"Institutional Liquidity Fund for Credit Unions" in the name of the Portfolio.
13. DURATION AND TERMINATION. This Agreement shall become
effective with respect to the Portfolio upon approval of this Agreement by vote
of a majority of the outstanding voting securities of the Portfolio and, unless
sooner terminated as provided herein, shall continue with respect to the
Portfolio until August 16, 2003. Thereafter, if not terminated, this Agreement
shall continue with respect to the Portfolio for successive annual periods
ending on August 16
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PROVIDED such continuance is specifically approved at least annually (a) by the
vote of a majority of those members of the Board of Directors of the Fund 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 approval, and
(b) by the Board of Directors of the Fund or by vote of a majority of the
outstanding voting securities of the Portfolio; PROVIDED, HOWEVER, that this
Agreement may be terminated with respect to the Portfolio by the Fund at any
time, without the payment of any penalty, by the Board of Directors of the Fund
or by vote of a majority of the outstanding voting securities of the Portfolio,
on 60 days' prior written notice to the Investment Advisor, or by the Investment
Advisor at any time, without payment of any penalty, on 60 days' prior written
notice to the Fund. This Agreement will immediately terminate in the event of
its assignment. (As used in this Agreement, the terms "majority of the
outstanding voting securities," "interested person" and "assignment" shall have
the same meaning as such terms have in the 1940 Act).
14. AMENDMENT OF THIS AGREEMENT. No provision of this
Agreement may be changed, discharged or terminated orally, except by an
instrument in writing signed by the party against which enforcement of the
change, discharge or termination is sought, and no amendment of this Agreement
affecting the Portfolio shall be effective until approved by vote of the holders
of a majority of the outstanding voting securities of the Portfolio.
15. MISCELLANEOUS. The captions in this Agreement are included
for convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and shall be
governed by Delaware law.
16. CHANGE IN MEMBERSHIP. The Investment Advisor shall notify
the Fund of any change in its membership within a reasonable time after such
change.
17. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
without giving effect to the conflicts of laws principles thereof.
18. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
THE RBB FUND, INC.
By: ____________________
Xxxxxx X. Xxxxx
President & Treasurer
WESCORP INVESTMENT SERVICES, LLC
By: ____________________
Name:
Title:
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