Exhibit (d)(32)
INTERIM INVESTMENT ADVISORY AND ADMINISTRATION AGREEMENT
(Money Market Portfolio)
AGREEMENT made as of September 29, 2006 between THE RBB FUND,
INC., a Maryland corporation (herein called the "Company"), and BLACKROCK
INSTITUTIONAL MANAGEMENT CORPORATION, a Delaware corporation (herein called the
"Investment Advisor").
WHEREAS, the Company is registered as an open-end,
diversified, management investment company under the Investment Company Act of
1940 (the "1940 Act") and currently offers shares representing interests in
separate investment portfolios; and
WHEREAS, the Investment Advisor has been providing investment
advisory and administration services to the Company's Money Market Portfolio
(the "Portfolio") under an Investment Advisory and Administration Agreement
dated August 16, 1988, which may have terminated as of the date hereof in
connection with a possible change in control involving the Investment Advisor as
regards the transaction defined below, and the Investment Advisor will continue
as investment adviser to the Portfolio provided the conditions of Rule 15a-4
under the 1940 Act are met; and
WHEREAS, this day BlackRock, Inc. ("BRI") and Xxxxxxx Xxxxx &
Co., Inc. ("Xxxxxxx Xxxxx") are merging Xxxxxxx Xxxxx'x investment management
business with a subsidiary of BRI (the "Transaction"); and
WHEREAS, the Company desires to continue to retain the
Investment Advisor to provide investment advisory and administration services to
the Portfolio following the Transaction; and
WHEREAS, the Board of Directors of the Company has approved
this Agreement, and the Investment Advisor is willing to furnish such services
upon the terms and conditions herein set forth;
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 Company hereby appoints the Investment Advisor
to act as investment advisor to the Company 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. The Company's Common Stock, $.001 par value (the
"Shares") has been classified into different classes of Common
Stock. The Portfolio contains two classes of Shares: the Class I
Shares and the Class L Shares.
2. DELIVERY OF DOCUMENTS. The Company has furnished the Investment
Advisor with copies properly certified or authenticated of each of
the following:
(a) Articles of Incorporation of the Company, filed with the
Secretary of State of Maryland on February 29, 1988, as amended
(such Articles of Incorporation, as presently in effect and as
they shall from time to time be amended, herein called the
"Articles of Incorporation");
(b) Articles Supplementary of the Company, filed with the
Secretary of State of the State of Maryland on March 24, 1988
and all further Articles Supplementary filed with the State of
Maryland ("Articles Supplementary");
(c) By-Laws of the Company, as amended (such By-Laws, as
presently in effect and as they shall from time to time be
amended, herein called the "By-Laws");
(d) Resolutions of the Board of Directors of the Company
authorizing the appointment of the Investment Advisor and the
execution and delivery of this Agreement;
(e) A copy of each Distribution Agreement between the Company
and the Company's principal underwriter (the "Distributor")
relating to any class of Shares representing interests in the
Portfolio and the form of each related Dealer Agreement, if
any, for broker-dealers participating in the distribution of
any class of Shares representing interests in the Portfolio
("Participating Dealers");
(f) Each Plan of Distribution pursuant to Rule 12b-1 under the
1940 Act, if any, relating to any class of Shares representing
interests in the Portfolio;
(g) Each Shareholder Servicing Agreement, if any, relating to
any class of Shares representing interests in the Portfolio;
(h) Each Non-12b-1 Shareholder Services Plan, if any, relating
to any class of Shares representing interests in the Portfolio;
(i) Notification of Registration of the Company under the 1940
Act on Form N-8A as filed with the Securities and Exchange
Commission ("SEC") on March 24, 1988 and all amendments
thereto;
(j) The initial Registration Statement of the Company on Form
N-lA under the Securities Act of 1933 (the "1933 Act") (File
No. 33-20827) and under the 1940 Act filed with the SEC on
March 24, 1988 relating to the Shares, and all amendments
thereto (the "Registration Statement"); and
(k) Each Prospectus relating to any class of Shares
representing interests in the Portfolio in effect under the
1933 Act (such prospectuses, as presently in effect and as they
shall from time to time be amended and supplemented, are herein
collectively called the "Prospectuses").
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The Company will 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.
3. MANAGEMENT OF THE PORTFOLIO. Subject to the supervision of the
Board of Directors of the Company, 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
Company for the Portfolio, (iii) the placement of orders for all purchases and
sales made for the Portfolio, and (iv) coordination of contractual relationships
and communications between the Company and its contractual service providers.
The Investment Advisor will provide the services rendered by it hereunder in
accordance with the investment objectives, restrictions and policies of the
Portfolio as stated in the applicable Prospectus and the applicable statement of
additional information contained in the Registration Statement. The Investment
Advisor further agrees that it will maintain all books and records with respect
to the securities transactions of the Portfolio, keep its respective books of
account and will render to the Company's Board of Directors such periodic and
special reports as the Board may request.
4. BROKERAGE. The Investment Advisor may place orders either directly
with the issuer or with any broker or dealer. In placing orders with brokers and
dealers, the Investment Advisor will attempt to obtain the best net price and
the most favorable execution of its orders. In placing orders with such broker
or dealer, the Investment Advisor will consider the experience and skill of the
firm's securities traders as well as the firm's financial responsibility and
administrative efficiency. Consistent with this obligation, when the execution
and price offered by two or more brokers or dealers are comparable, the
Investment Advisor may, in its discretion, purchase and sell the Portfolio's
securities to and from brokers and dealers who provide the Company with research
advice and other services. In no instance will the Portfolio's securities be
purchased from or sold to the Distributor, the Investment Advisor or any
affiliated person thereof, except to the extent permitted by SEC exemptive order
or by applicable law.
5. ADMINISTRATION SERVICES.
(a) The Investment Advisor will perform the following
administration and accounting functions on a daily basis:
(1) Journalize the Portfolio's investment, capital share
and income and expense activities;
(2) Verify investment buy/sell trade tickets and transmit
trades to the Company's custodian for proper settlement;
(3) Maintain individual ledgers for investment securities;
(4) Maintain historical tax lots for each security;
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(5) Reconcile cash and investment balances of the
Portfolio with the custodian, and prepare the beginning
cash balance available for investment purposes;
(6) Update the cash availability throughout the day as
required;
(7) Post to and prepare the Portfolio's Statement of
Assets and Liabilities and the Statement of Operations;
(8) Calculate various contractual expenses (E.G.,
advisory/administration and custody fees);
(9) Monitor the expense accruals and notify management of
the Company of any proposed adjustments;
(10) Control all disbursements from the Portfolio and
authorize such disbursements upon Written Instructions;
(11) Calculate capital gains and losses;
(12) Determine the Portfolio's net income;
(13) Obtain security market quotes from services approved
by management of the Company, or if such quotes are
unavailable, then obtain such prices from management of
the Company, and in either case calculate the market value
of the Portfolio's investments;
(14) Compute the net asset value of the Portfolio; and
(15) Compute the Portfolio's yields, total return, expense
ratios, Portfolio turnover rate, and, Portfolio average
dollar-weighted maturity.
(b) In addition to the accounting services described in the
foregoing Paragraph 5(a), the Investment Advisor will:
(1) Prepare monthly financial statements, which will
include the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Settlement
Schedule of Capital Gains and Losses;
(2) Prepare quarterly broker security transactions
summaries;
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(3) Supply various normal and customary Portfolio and
Company statistical data as requested on an ongoing basis;
(4) Prepare for execution and file the Portfolio's and
Company's Federal and state tax returns;
(5) Prepare and file the Company's Semi-Annual Reports
with the SEC on Form N-SAR and prepare and file the
Company's Rule 24f-2 Notice and Form N-PX with the SEC;
(6) Prepare and file with the SEC the Portfolio's and
Company's annual, semi-annual and quarterly Shareholder
reports on Form N-CSR and Form N-Q;
(7) Assist with the preparation of registration statements
on Form N-lA and other filings relating to the
registration of Shares;
(8) Monitor the Company's status as a regulated investment
company under Sub-chapter M of the Internal Revenue Code
of 1986, as amended;
(9) Qualify the Class I Shares and the Class L Shares for
sale in each state in which the Company's Board of
Directors determines to sell the Class I Shares or the
Class L Shares and make all filings and take all
appropriate actions necessary to maintain and renew such
registrations of the Class I Shares and the Class L
Shares;
(10) Monitor the Company's compliance with the amounts and
conditions of each such state qualification; and
(11) Maintain the Company's fidelity bond as required by
the 1940 Act and obtain a directors and officers liability
policy.
(c) The Investment Advisor shall act as liaison with the
Company's independent registered public accounting firm and
shall provide account analyses, fiscal year summaries, and
other audit related schedules. The Investment Advisor shall
take all reasonable action in the performance of its
obligations under this Agreement to assure that the necessary
information is made available to such accountants for the
expression of their opinion, as such may be required by the
Company from time to time.
6. 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 (herein called the "Rules"). The
Investment Advisor will treat confidentially and as proprietary information of
the Company all records and other information relative to the Company and prior,
present or potential shareholders, 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
Company, which approval shall not be
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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 Company.
7. SERVICES NOT EXCLUSIVE. The investment management and
administration services rendered by the Investment Advisor hereunder are not to
be deemed exclusive, and the Investment Advisor shall be free to render similar
services to others so long as its services under this Agreement are not impaired
thereby.
8. BOOKS AND RECORDS. In compliance with the requirements of Rule
31a-3 of the Rules, the Investment Advisor hereby agrees that all records which
it maintains for the Portfolio are the property of the Company and further
agrees to surrender promptly to the Company any of such records upon the
Company's request. The Investment Advisor further agrees to preserve for the
periods prescribed by Rule 31a-2 the records required to be maintained by Rule
31a-1 of the Rules.
9. 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 other than the cost of (including brokerage commissions, if any)
securities purchased for the Portfolio, the cost of any independent pricing
service used in valuing the Portfolio's securities and fees and expenses of
registering and qualifying shares for distribution under state securities laws.
In addition, if the expenses borne by the Portfolio in any fiscal year
exceed the most restrictive applicable expense limitations imposed by the
securities regulations of any state in which the Shares are registered or
qualified for sale to the public, the Investment Advisor shall reimburse the
Portfolio for any excess up to the amount of the fees payable by the Portfolio
to it during such fiscal year pursuant to Paragraph 10 hereof; PROVIDED,
HOWEVER, that notwithstanding the foregoing, the Investment Advisor shall
reimburse the Portfolio for such excess expenses regardless of the amount of
such fees payable to it during such fiscal year to the extent that the
securities regulations of any state in which the Shares are registered or
qualified for sale so require.
10. COMPENSATION.
(a) For the services provided and the expenses assumed pursuant to
this Agreement with respect to the Portfolio, the Company 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 following annual rate: 0.45% of-the first $250 million of the
Portfolio's average daily net assets, 0.40% of the next $250 million of the
Portfolio's average daily net assets, and 0.35% of the Portfolio's average daily
net assets in excess of $500 million.
(b) The fee attributable to the Portfolio shall be satisfied only
against the assets of the Portfolio and not against the assets of any other
investment portfolio of the Company.
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11. 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 Company 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.
12. DURATION AND TERMINATION. The term of this Agreement shall begin
on the date first above written and shall terminate without penalty upon the
earlier of (i) 150 days from the date hereof, (ii) 10 calendar days' written
notice by the Company to the Investment Advisor, provided that the Company's
Board of Directors or a Majority (as defined below) of the outstanding voting
securities of the Portfolio have voted to terminate the Agreement; (iii) an
event of assignment (as defined in the 1940 Act); and (iv) upon the effective
date of an Investment Advisory and Administration Agreement between the
Investment Advisor and the Company that has received the approval of the vote of
a Majority of the Portfolio's outstanding voting securities. For purposes of the
foregoing, "Majority" is defined as the lesser of (a) 67% of the shares of the
Portfolio represented at a meeting if holders of more than 50% of the
outstanding shares of the Portfolio are present in person or by proxy or (b)
more than 50% of the outstanding shares of the Portfolio. Subject to Section 13,
termination of this Agreement shall not affect the right of the Investment
Advisor to receive payments on any unpaid balance of the compensation to which
it is entitled under this Agreement earned prior to such termination.
13. ESCROW PROVISIONS. a) Notwithstanding any other provision of this
Agreement, in no event shall compensation paid to the Investment Advisor
hereunder exceed the amount permitted by Rule 15a-4 under the 1940 Act. All
compensation paid to the Investment Advisor hereunder shall be held in an
interest-bearing escrow account with the Portfolio's custodian (the "Escrow
Account"). Funds held in the Escrow Account, including interest earned ("Escrow
Money"), shall be paid to the Investment Advisor promptly after approval of an
Investment Advisory and Administration Agreement between the Investment Advisor
and the Company by the vote of a Majority of the Portfolio's outstanding voting
securities in accordance with the 1940 Act, provided that such approval is
obtained no later than 150 days after the date of this Agreement.
(b) Notwithstanding any other provision of this Agreement, if an
Investment Advisory and Administration Agreement between the Investment Advisor
and the Company is not approved by a vote of a Majority of the Portfolio's
outstanding voting securities within the time period stated above, the
Investment Advisor shall receive from the Escrow Account as full compensation
for its services hereunder the lesser of: (x) any costs incurred by the
Investment Advisor in performing this Agreement plus any interest earned on that
amount while in escrow, or (y) the total amount in the Escrow Account plus
interest if earned.
14. DELEGATION. On thirty (30) days prior written notice to the
Portfolio, the Investment Advisor may delegate those of its duties set forth in
Paragraph 5 hereof to any wholly-owned direct or indirect subsidiary of The PNC
Financial Services Group, Inc. provided
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that (i) the delegate agrees with the Investment Advisor to comply with all
relevant provisions of the 1940 Act; and (ii) the Investment Advisor and such
delegate shall promptly provide such information as the Portfolio may request,
and respond to such questions as the Portfolio may ask, relative to the
delegation, including (without limitation) the capabilities of the delegate. Any
delegation under this paragraph shall not be deemed an assignment for purposes
of paragraph 12 hereof. Notwithstanding any such delegation, the Investment
Advisor shall remain responsible for the performance of its duties set forth in
Paragraph 5 hereof and shall hold the Portfolio harmless from the acts and
omissions, under the standards of care provided for herein, of any delegate
chosen pursuant to this Paragraph 14.
15. 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.
16. 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.
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: /s/ Xxxxxx X. Xxxxx
Title: President
BLACKROCK INSTITUTIONAL
MANAGEMENT CORPORATION
By: /s/ Xxxx Xxxxx
Title:
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