Exhibit 9 (hhh)
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
TERMS AND CONDITIONS
This Agreement is made as of __________, 1998 by and between
THE RBB FUND, INC., a Maryland corporation (the "Fund"), and PFPC INC., a
Delaware corporation ("PFPC"), which is an indirect wholly-owned subsidiary of
PNC Bank Corp.
The Fund is registered as an open-end, non-diversified investment
company under the Investment Company Act of 1940, as amended (the "1940 Act").
The Fund wishes to retain PFPC to provide administration and accounting services
to its Xxxxxxxxx Capital Value Fund (the "Portfolio"), and PFPC wishes to
furnish such services.
In consideration of the promises and mutual covenants herein
contained, the parties agree as follows:
1. DEFINITIONS.
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as
amended.
(c) "AUTHORIZED PERSON" means any officer of the Fund and any other
person, duly authorized by the Fund's Board of Directors, to give Oral and
Written Instructions on behalf of the Fund and listed on the Certificate
attached hereto as Appendix B or any amendment thereto as may be received by
PFPC from time to time. An Authorized Person's scope of authority may be limited
by the Fund by setting forth such limitation on the Certificate.
1
(d) "BOOK-ENTRY SYSTEM" means Federal Reserve Treasury book-entry
system for United States and federal agency securities, its successor or
successors, and its nominee or nominees and any book-entry system maintained by
an exchange registered with the SEC under the 1934 Act.
(e) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC
from an Authorized Person or from a person reasonably believed by PFPC to be an
Authorized Person.
(f) "SEC" means the Securities and Exchange Commission.
(g) "SHARES" mean the shares of common stock of the Fund
representing an interest in the Portfolio.
(h) "PROPERTY" means:
(i) any and all securities and other investment items of the
Portfolio which the Fund may from time to time deposit, or
cause to be deposited, with PFPC or which PFPC may from
time to time hold for the Fund on behalf of the Portfolio;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of Shares which are received by
PFPC from time to time, from or on behalf of the Fund.
(i) "WRITTEN INSTRUCTIONS" mean written instructions signed by two
Authorized Persons and received by PFPC. The instructions may be delivered by
hand, mail, tested telegram, cable, telex or facsimile sending device.
2
2. APPOINTMENT. The Fund hereby appoints PFPC to provide
administration and accounting services to the Portfolio, in accordance with the
terms set forth in this Agreement. PFPC accepts such appointment and agrees to
furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable,
will provide PFPC with the following:
(a) certified or authenticated copies of the resolutions of the
Fund's Board of Directors, approving the appointment of PFPC
to provide services pursuant to this Agreement;
(b) a copy of the Fund's most recent effective registration
statement;
(c) a copy of the Fund's advisory agreement or agreements with
respect to the Portfolio;
(d) a copy of the Fund's distribution agreement or agreements with
respect to the Portfolio;
(e) a copy of any additional administration agreement with respect
to the Portfolio;
(f) copies of any shareholder servicing agreements made in respect
of the Portfolio; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH GOVERNMENT RULES AND REGULATIONS.
PFPC undertakes to comply with all applicable requirements of the
1933 Act, the 1934 Act and the 1940 Act, and any laws, rules and regulations of
governmental authorities having jurisdiction with respect to all duties to be
performed by PFPC hereunder. Except as specifically set forth herein, PFPC
assumes no responsibility for such compliance by the Fund.
3
5. INSTRUCTIONS.
Unless otherwise provided in this Agreement, PFPC shall act only
upon oral and Written Instructions.
PFPC shall be entitled to rely upon any Oral and Written
Instructions it receives from an Authorized Person (or from a person reasonably
believed by PFPC to be an Authorized Person) pursuant to this Agreement. PFPC
may assume that any Oral or Written Instruction received hereunder is not in any
way inconsistent with the provisions of organizational documents or this
Agreement or of any vote, resolution or proceeding of the Fund's Board of
Directors or of the Fund's shareholders.
The Fund agrees to forward to PFPC Written Instructions confirming
Oral Instructions so that PFPC receives the Written Instructions by the close of
business on the same day that such Oral Instructions are received. The fact that
such confirming Written Instructions are not received by PFPC shall in no way
invalidate the transactions or enforceability of the transactions authorized by
the Oral Instructions. The Fund further agrees that PFPC shall incur no
liability to the Fund in acting upon Oral or Written Instructions provided such
instructions reasonably appear to have been received from an Authorized Person.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PFPC is in doubt as to any action it
should or should not take, PFPC may request directions or advice, including Oral
or Written Instructions, from the Fund.
4
(b) ADVICE OF COUNSEL. If PFPC shall be in doubt as to any
questions of law pertaining to any action it should or should not take, PFPC may
request advice at its own cost from such counsel of its own choosing (who may be
counsel for the Fund, the Fund's advisor or PFPC, at the option of PFPC).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions, advice or Oral or Written Instructions PFPC receives from the Fund,
and the advice it receives from counsel, PFPC shall be entitled to rely upon and
follow the advice of counsel.
(d) PROTECTION OF PFPC. PFPC shall be protected in any action it
takes or does not take in reliance upon directions, advice or Oral or Written
Instructions it receives from the Fund or from counsel and which PFPC believes,
in good faith, to be consistent with those directions, advice and Oral or
Written Instructions.
Nothing in this paragraph shall be construed so as to impose an
obligation upon PFPC (i) to seek such directions, advice or Oral or Written
Instructions, or (ii) to act in accordance with such directions, advice or Oral
or Written Instructions unless, under the terms of other provisions of this
Agreement, the same is a condition of PFPC's properly taking or not taking such
action.
7. RECORDS.
The books and records pertaining to the Fund, which are in the
possession of PFPC, shall be the property of the Fund.
5
Such books and records shall be prepared and maintained as required by the 1940
Act and other applicable securities laws, rules and regulations. The Fund and
Authorized Persons shall have access to such books and records at all times
during PFPC's normal business hours. Upon the reasonable request of the Fund,
copies of any such books and records shall be provided by PFPC to the Fund or to
an Authorized Person at the Fund's expense to be paid from the assets of the
Portfolio.
PFPC shall keep the following records:
(a) all books and records with respect to the Portfolio's books of
account;
(b) records of the Portfolio's securities transactions;
(c) all other books and records as PFPC is required to maintain
pursuant to Rule 3la-1 of the 1940 Act and as specifically set
forth in Appendix B hereto.
8. CONFIDENTIALITY.
PFPC agrees to keep confidential all records of the Fund and
information relative to the Fund and its shareholders (past, present and
potential), unless the release of such records or information is otherwise
consented to, in writing, by the Fund. The Fund agrees that such consent shall
not be unreasonably withheld. The Fund further agrees that, should PFPC be
required to provide such information or records to duly constituted authorities
(who may institute civil or criminal contempt proceedings for failure to
comply), PFPC shall not be
6
required to seek the Fund's consent prior to disclosing such information.
9. LIAISON WITH ACCOUNTANTS.
PFPC shall act as liaison with the Fund's independent public
accountants and shall provide account analyses, fiscal year summaries, and other
audit-related schedules, all with respect to the Portfolio. PFPC 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 Fund from time
to time.
10. DISASTER RECOVERY.
PFPC shall enter into and shall maintain in effect with appropriate
parties one or more agreements making reasonable provision of emergency use of
electronic data processing equipment to the extent appropriate equipment is
available. In the event of equipment failures, PFPC shall, at no additional
expense to the Fund, take reasonable steps to minimize service interruptions but
shall have no liability with respect thereto.
11. COMPENSATION.
As compensation for services rendered by PFPC during the term of
this Agreement, the Fund will pay to PFPC from the assets of the Portfolio a fee
or fees as may be agreed to in writing by the Fund and PFPC.
7
12. INDEMNIFICATION.
The Fund agrees to indemnify and hold harmless PFPC and its
nominees from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, liabilities arising under the 1933 Act, the 1934
Act and the 1940 Act, and any state and foreign securities and blue sky laws,
and amendments thereto, and expenses, including (without limitation) attorneys'
fees and disbursements, arising directly or indirectly from any action which
PFPC takes or does not take (i) at the request or on the direction of or in
reliance on the advice of the Fund or (ii) upon Oral or Written Instructions.
Neither PFPC, nor any of its nominees, shall be indemnified against any
liability to the Fund or to its shareholders (or any expenses incident to such
liability) arising out of PFPC's own willful misfeasance, gross negligence or
reckless disregard of its duties and obligations under this Agreement.
13. RESPONSIBILITY OF PFPC.
PFPC shall be under no duty to take any action on behalf of the
Fund except as specifically set forth herein or as may be specifically agreed to
by PFPC in writing. PFPC shall be obligated to exercise care and diligence in
the performance of its duties hereunder, to act in good faith and to use its
best efforts, within reasonable limits, in performing services provided for
under this Agreement. PFPC shall be responsible for failure to perform its
duties under this Agreement arising out of PFPC's gross negligence.
Notwithstanding the foregoing, PFPC
8
shall not be responsible for losses beyond its control, provided that PFPC has
acted in accordance with the standard of care set forth above; and provided
further that PFPC shall only be responsible for that portion of losses or
damages suffered by the fund that are attributable to the gross negligence of
PFPC.
Without limiting the generality of the foregoing or of any other
provision of this Agreement, PFPC, in connection with its duties under this
Agreement, shall not be liable for (a) the validity or invalidity or authority
or lack thereof of any Oral or Written Instruction, notice or other instrument
which conforms to the applicable requirements of this Agreement, and which PFPC
reasonably believes to be genuine; or (b) delays or errors or loss of data
occurring by reason of circumstances beyond PFPC's control, including acts of
civil or military authority, national emergencies, labor difficulties, fire,
flood or catastrophe, acts of God, insurrection, war, riots or failure of the
mails, transportation, communication or power supply.
Notwithstanding anything in this Agreement to the contrary, PFPC
shall have no liability to the Fund for any consequential, special or indirect
losses or damages which the Fund may incur or suffer by or as a consequence of
PFPC's performance of the services provided hereunder, whether or not the
likelihood of such losses or damages was known by PFPC.
9
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUING BASIS.
PFPC will perform the following accounting functions with respect
to the Portfolio if required:
(i) Journalize investment, capital share and income and expense
activities;
(ii) verify investment buy/sell trade tickets when received from
the investment advisor (the "Advisor") and transmit trades
to the Fund's foreign custodian (the "Custodian") for proper
settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances with the Custodian,
and provide the Advisor with the beginning cash balance
available for investment purposes;
(vi) Update the cash availability throughout the day as required
by the Advisor;
(vii) Post to and prepare the Statement of Assets and Liabilities
and the Statement of Operations;
(viii) Calculate various contractual expenses (E.G., advisory and
custody fees);
(ix) Monitor the expense accruals and notify an officer of the
Fund of any proposed adjustments;
(x) Control all disbursements and authorize such disbursements
upon Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from independent pricing
services approved by the Advisor, or if such quotes are
unavailable, then obtain such prices from Advisor, and in
either case calculate the market value of the investments;
10
(xiv) Transmit or mail a copy of the daily portfolio valuation to
the Advisor;
(xv) Compute net asset value;
(xvi) As appropriate, compute yields, total return, expense
ratios, portfolio turnover rate, and, if required, portfolio
average dollar-weighted maturity; and
(xvii) Prepare a monthly financial statement, which includes the
following items:
Schedule of Investments
Statement of Assets and Liabilities Statement of Operations
Cash Statement
Schedule of Capital Gains and Losses.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUING BASIS.
PFPC will perform the following administration services with
respect to the Portfolio:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) (a) Assist in the preparation of support schedules necessary
for completion of federal and state tax returns; or (b)
prepare for execution and file the Fund's federal and state
tax returns;
(iv) (a) Assist in the preparation of Semi-Annual Reports with
the SEC on Form N-SAR; or (b) prepare and file the Fund's
Semi-Annual Reports with the SEC on Form N-SAR.
(v) Assist in the preparation of annual, semi-annual, and
quarterly shareholder reports; or (b) prepare and file with
the SEC the Fund's annual, semi-annual, and quarterly
shareholder reports;
(vi) Assist with the preparation of registration statements and
other filings relating to the registration of Shares;
11
(vii) Monitor the Portfolio's status as a regulated investment
company under Subchapter M of the Internal Revenue Code of
1986, as amended; and
(viii) Coordinate contractual relationships and communications
between the Fund and its service providers.
16. DURATION AND TERMINATION.
This Agreement shall continue until terminated by the Fund or by
PFPC on sixty (60) days' prior written notice to the other party.
17. NOTICES.
All notices and other communications, including written
Instructions, shall be in writing or by confirming telegram, cable, telex or
facsimile sending device. If notice is sent by confirming telegram, cable, telex
or facsimile sending device, it shall be deemed to have been given immediately.
If notice is sent by first-class mail, it shall be deemed to have been given
three days after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered. Notices shall be addressed
(a) if to PFPC at PFPC's address, 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000; (b) if to the Fund, at the address of the Fund; or (c) if to neither of
the foregoing, at such other address as shall have been notified to the sender
of any such Notice or other communication.
12
18. AMENDMENTS.
This Agreement, or any term thereof, may be changed or waived only
by written amendment, signed by the party against whom enforcement of such
change or waiver is sought.
19. DELEGATION.
PFPC may assign its rights and delegate its duties hereunder to any
wholly owned director indirect subsidiary of PNC Bank, National Association or
PNC Bank Corp., provided that (i) PFPC gives the Fund thirty (30) days' prior
written notice; (ii) the delegate agrees with PFPC to comply with all relevant
provisions of the 1940 Act; and (iii) PFPC and such delegate promptly provide
such information as the Fund may request, and respond to such questions as the
Fund may ask, relative to the delegation, including (without limitation) the
capabilities of the delegate.
20. 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.
21. FURTHER ACTIONS.
Each Party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof.
13
22. MISCELLANEOUS.
This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and understandings
relating to the subject matter hereof, provided that the parties may embody in
one or more separate documents their agreement, if any, with respect to
delegated and/or Oral Instructions.
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.
This Agreement shall be deemed to be a contract made in Delaware
and governed by Delaware law. 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
and shall inure to the benefit off the parties hereto and their respective
successors.
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their officers designated below on the day and year first
above written.
PFPC INC.
By:____________________________
Name:Xxxxxxx X. Xxxxx
Title:Executive Vice President
THE RBB FUND, INC.
By:_____________________________
Name: Xxxxxx X. Xxxxx
President & Treasurer
15
_____________, 1998
The RBB Fund Inc.
Re: Administration and Accounting Services Fees
XXXXXXXXX CAPITAL VALUE FUND
Dear Sir/Madam:
This letter constitutes our agreement with respect to compensation
to be paid to PFPC Inc. ("PFPC") under the terms of an Administration and
Accounting Services Agreement dated _________, 1998 between PFPC and The RBB
Fund, Inc. (the "Fund") on behalf of its Xxxxxxxxx Capital Value Fund (the
"Portfolio"). In consideration of the services to be provided by PFPC, the Fund
on behalf of the Portfolio will pay PFPC an annual administration and accounting
fee, to be calculated daily and paid monthly. The Fund on behalf of the
Portfolio will also reimburse PFPC for its out-of-pocket expenses incurred on
behalf of the Portfolio, including, but not limited to, postage and handling,
telephone, telex, Federal Express and outside pricing service charges.
The annual administration and accounting fee shall be .___% of the
Portfolio's average daily net assets, exclusive of out-of-pocket expenses, with
a monthly minimum fee of $______.
The fee for the period from the date hereof until the end of that
calendar year shall be pro-rated according to the proportion which such period
bears to the full annual period commencing on the date hereof.
16
If the foregoing accurately sets forth our agreement, and you
intend to be legally bound thereby, please execute a copy of this letter and
return it to us.
Very truly yours,
PFPC, INC.
By: ____________________________
Name:Xxxxxxxx X. Xxxxx
Title:Executive Vice President
Accepted:
THE RBB FUND, INC.
By: _________________________________
Name: Xx. Xxxxxx X. Xxxxx
Title: President & Treasurer
17
______________, 1998
The RBB Fund Inc.
Re: Administration and Accounting Services Fees Waiver
XXXXXXXXX CAPITAL VALUE FUND
Dear Sir/Madam:
PFPC Inc. ("PFPC") agrees to waive certain fees under an
Administration and Accounting Services Agreement dated ________, 1998 between
PFPC and The RBB Fund, Inc. on behalf of its Xxxxxxxxx Capital Value Fund (the
"Portfolio") as follows: for the first two years of the Portfolio's operations
PFPC shall waive 50% of its minimum fee (excluding miscellaneous fees and
out-of-pocket costs) to the extent the minimum fee is applicable; thereafter,
PFPC's minimum fee shall be charged in full. Thus, during the twenty-fifth
calendar month and thereafter, the Portfolio shall pay 100% of the minimum fee.
Very truly yours,
PFPC INC.
By: ______________________________
Name:Xxxxxxx X. Xxxxx
Title:Executive Vice President
Acknowledged:
The RBB FUND, INC.
By: _______________________________
Name: Xxxxxx X. Xxxxx
Title: President & Treasurer
18
