EXHIBIT 9(ll)
CO-ADMINISTRATION AGREEMENT
TERMS AND CONDITIONS
This Agreement is made as of March 31, 1995 by and
between the RBB Fund, Inc. (the "Company"), a Maryland
corporation, and PFPC Inc. ("PFPC"), a Delaware corporation,
which is an indirect, wholly-owned subsidiary of PNC Bank,
National Association with respect to the Warburg Pincus Tax Free
Fund (the "Fund"), a portfolio of the Company.
The Company is registered as an open-end investment
company under the Investment Company Act of 1940 (the "1940
Act"), as amended. The Company wishes to retain PFPC to provide
certain administration and accounting services for the Fund, and
PFPC wishes to furnish such services. Such services are in
addition to those provided to the Company by Counsellors Funds
Service, Inc. pursuant to the Co-Administration Agreement dated
March 31, 1995.
In consideration of the promises and mutual covenants
herein contained, the parties agree as follows:
1. Definitions.
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a. "Authorized Person." The term "Authorized Person"
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shall mean any officer of the Company and any other
person, who is duly authorized by the Company's
Governing Board, to give Oral and Written Instructions
on behalf of the Company. Such persons are listed' in
the Certificate attached hereto as the Authorized
Persons Appendix to each Services Attachment to this
Agreement. If PFPC provides more than one service
hereunder, the Company's designation of Authorized
Persons may vary by service.
b. "CFTC." The term "CFTC" shall mean the Commodities
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Futures Trading Commission.
c. "Governing Board." The Term "Governing Board" shall
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mean the Company's Board of Directors, or, where duly
authorized, a competent committee thereof.
d. "Oral Instructions." The term "Oral Instructions"
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shall mean oral instructions received by PFPC from an
Authorized Person or from a person reasonably believed
by PFPC to be an Authorized Person.
e. "PNC." The term "PNC" shall mean PNC Bank, National
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Association or a subsidiary or affiliate of PNC Bank,
National Association.
f. "Property." The term "Property" shall mean:
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i. any and all securities and other investment items
which the Fund may from time to time deposit, or
cause to be deposited, with PNC or which PNC may
from time to time hold for the Fund;
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 securities issued by
the Fund, which are received by PNC from time to
time, from or on behalf of the Fund.
g. "SEC." The term "SEC" shall mean the Securities and
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Exchange Commission.
h. "Securities and Commodities Laws." The terms the "1933
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Act" shall mean the Securities Act of 1933, as amended
the "1934 Act" shall mean the Securities Exchange Act
of 1934, as amended the "1940 Act" shall mean the
Investment Company Xxx 0000, as amended, and the "CEA"
shall mean the Commodities Exchange Act, as amended.
i. "Services." The term "Services" shall mean the service
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provided to the Fund by PFPC.
j. "Shares." The terms "Shares" shall mean the shares of
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stock of any class of the Fund.
k. "Written Instructions." The term "Written
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Instructions" shall mean written instructions signed by
one Authorized Person and received by PFPC. The
instructions may be delivered by hand, mail, tested
telegram, cable, telex or facsimile sending device.
2. Appointment.
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The Company hereby appoints PFPC to provide
administration and accounting services for the Fund, in
accordance with the terms set forth in this Agreement. PFPC
accepts such appointment and agrees to furnish such services.
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3. Delivery of Documents.
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The Company has provided or, where applicable, will
provide PFPC with the following:
a. certified or authenticated copies of the resolutions of
the Company's Governing Board, approving the
appointment of PFPC or its affiliates to provide
services;
b. a copy of the Fund's most recent effective registration
statement;
c. a copy of the Fund's advisory agreement;
d. a copy of the Fund's distribution agreement;
e. a copy of the Fund's co-administration agreement with
Counsellors Funds Service, Inc.;
f. copies of any shareholder servicing agreements made in
respect of the Fund; and
g. certified or authenticated copies of any and all
amendments or supplements to the foregoing.
4. Compliance with Government Rules and Regulations.
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PFPC undertakes to comply with all applicable
requirements of the 1933 Act, the 1934 Act, the 1940 Act, and the
CEA, 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.
5. Instructions.
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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
Company's Governing Board or of the Fund's shareholders.
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The Company 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 Company
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.
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a. Advice of the Company. If PFPC is in doubt as to any
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action it should or should not take, PFPC may request
directions or advice, including Oral or Written
Instructions, from the Company.
b. Advice of Counsel. If PFPC shall be in doubt as to any
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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 Company, the Fund's advisor or PFPC, at
the option of PFPC).
c. Conflicting Advice. In the event of a conflict between
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directions, advice or Oral or Written Instructions PNC
receives from the Company, 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
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action it takes or does not take in reliance upon
directions, advice or Oral or Written Instructions it
receives from the Company or from counsel and which
PFPC believes, in good faith, to be consistent with
those directions, advice and Oral or Written
Instructions.
e. Limitation. Nothing in this paragraph shall be
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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.
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7. Records.
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The books and records pertaining to the Fund, which are
in the possession of PFPC, shall be the property of the Company.
Such books and records shall be prepared and maintained as
required by the 1940 Act and other applicable securities laws,
rules and regulations. The Company, or the Company's 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 Company, copies of any such books and records shall be
provided by PFPC to the Company or to an Authorized Person of the
Company, at the Company's expense.
PFPC shall keep the following records:
a. all books and records with respect to the Fund's books
of account;
b. records of the Fund's securities transactions;
c. all other books and records as PFPC is required to
maintain pursuant to Rule 31a-1 of the 1940 Act and as
specifically set forth in Appendix A hereto.
8. Confidentiality.
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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
Company. The Company agrees that such consent shall not be
unreasonably withheld. The Company 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
required to seek the Company's consent prior to disclosing such
information.
9. Liaison with Accountants.
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PFPC shall act as liaison with the Company's
independent public accountants and shall provide account
analyses, fiscal year summaries, and other audit-related
schedules. 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 Company from time to time.
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10. Disaster Recovery.
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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.
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As compensation for services rendered by PFPC during
the term of this Agreement, the Fund will pay to PFPC a fee or
fees as may be agreed to in writing by the Company and PFPC.
12. Indemnification.
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The Company 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, the 1940
Act, the CEA, 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 Company or (ii) upon Oral or Written Instructions.
Neither PFPC, nor any of its nominees, shall be indemnified
against any liability to the Company or to its shareholders (or
any expenses incident to such liability) arising out of PFPC's
own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement.
13. Responsibility of PFPC.
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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
its own negligent failure to perform its duties under this
Agreement. Notwithstanding the foregoing, PFPC 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 negligence of PFPC.
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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.
14. Description of Accounting Services.
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PFPC will perform the following accounting functions,
if required:
a. Journalize the Fund's investment, capital share and
income and expense activities;
b. Verify investment buy/sell trade tickets when received
from the Fund's investment advisor and transmit trades
to the Fund's custodian for proper settlement;
c. Maintain individual ledgers for investment securities;
d. Maintain historical tax lots for each security;
e. Reconcile cash and investment balances of the Fund with
the custodian, and provide the Fund's investment
advisor with the beginning cash balance available for
investment purposes;
f. Update the cash availability throughout the day as
required by the Fund's advisor;
g. Post to and prepare the Fund's Statement of Assets and
Liabilities and the Statement of Operations;
h. Calculate various contractual expenses (e.g., advisory
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and custody fees);
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i. Monitor the expense accruals and notify Fund management
of any proposed adjustments;
j. Control all disbursements from the Fund and authorize
such disbursements upon Written Instructions;
k. Calculate capital gains and losses;
l. Determine the Fund's net income;
m. Obtain security market quotes from independent pricing
services approved by the Advisor, or if such quotes are
unavailable, then obtain such prices from the Advisor,
and in either case calculate the market value of the
Fund's investments;
n. Transmit or mail a copy of the daily portfolio
valuation to the Advisor;
o. Compute the net asset value of the Fund;
p. As appropriate, compute the Fund's yields, total
return, expense ratios, portfolio turnover rate, and,
if required, portfolio average dollar-weighted
maturity; and
q. Prepare a monthly financial statement, which will
include the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses.
15. Description of Administration Services.
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PFPC will perform the following administrative
functions, if required:
a. Prepare quarterly broker security transactions
summaries;
b. Prepare monthly security transaction listings;
c. Prepare for execution and file the Fund's Federal and
state tax returns;
d. Assist in the preparation of the Fund's Semi-Annual
Reports with the SEC on Form N-SAR;
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e. Assist in the preparation of the Fund's annual and
semi-annual shareholder reports;
f. Assist with the preparation of registration statements
and other filings relating to the registration of
Shares; and
g. Monitor the Fund's status as a regulated investment
company under Sub-Chapter M of the Internal Revenue
Code of 1986, as amended.
16. Duration and Termination.
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This Agreement shall continue until terminated by the
Company or by PFPC on sixty (60) days prior written notice to the
other party.
17. Notices.
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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 Company, at the address of the Company, 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; 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.
18. Amendments.
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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.
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PFPC may assign its rights and delegate its duties
hereunder to any wholly-owned direct or indirect subsidiary of
PNC Bank or PNC Bank Corp., provided that (i) PFPC gives the
Company 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 Company may request, and respond to such
questions as the Company may ask, relative to the delegation,
including (without limitation) the capabilities of the delegate.
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20. Counterparts.
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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.
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Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
22. Limitation of Liability.
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The Company and PFPC agree that the obligations of the
Company under this Agreement will not be binding upon any of the
Directors, shareholders, nominees, officers, employees or agents,
whether past, present or future, of the Company, individually,
but are binding only upon the assets and property of the Fund, as
Provided in the Company's Charter. The execution and delivery of
this Agreement have been authorized by the Directors of the
Company, and signed by an authorized officer of the Company,
acting as such, and neither the authorization by the Directors
nor the execution and delivery by the officer will be deemed to
have been made by any of them individually or to impose any
liability on any of them personally, but will bind only the
property of the Fund as provided in the Charter.
23. Miscellaneous.
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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 of the parties hereto and their
respective successors.
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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:/s/ Xxxxxxx X. Xxxxxx
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THE RBB FUND, INC.
By: /s/ Xxxxxx X. Xxxxx
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APPENDIX A
[list Books and Records to be Maintained by PFPC]
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The RBB Fund, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Re: Co-Administration Service Fees
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Gentlemen:
This letter constitutes our agreement with respect to
compensation to be paid to PFPC Inc. ("PFPC") under the terms of
the Co-Administration Agreement dated March 31, 1995 between you
(the "Company") and PFPC. Pursuant to Paragraph 11 of that
Agreement, and in consideration of the services to be provided to
you, you will pay PFPC an annual co-administration fee, to be
calculated daily and paid monthly. You will also reimburse PFPC
for its out-of-pocket expenses incurred on behalf of the Fund,
including, but not limited: postage and handling, telephone,
telex, Federal Express and outside pricing service charges.
The annual co-administration fee shall be .15% of the
Fund's average daily net assets, with a minimum annual fee of
$75,000.
In each month the Fund shall pay to PFPC the greater of
the asset based fee as calculated above or the minimum fee. The
fee for the period from the day of the year this agreement is
entered into until the end of that year shall be pro-rated
according to the proportion which such period bears to the full
annual period.
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: /s/ Xxxxxxx X. Xxxx
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Accepted: THE RBB FUND, INC.
By:/s/ Xxxxxx X. Xxxxx
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