Exhibit 9(k)
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
TERMS AND CONDITIONS
This Agreement is made as of November 5, 1991 by and
between THE RBB FUND, INC., (the "Fund"), a Maryland corporation, and PROVIDENT
FINANCIAL PROCESSING CORPORATION ("PFPC"), a Delaware corporation which is an
indirect wholly-owned subsidiary of PNC Financial Corp.
The Fund is registered as an open-end 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 New York
Municipal Money Market Portfolio ("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) "Authorized Person." The term "Authorized Person" shall
mean any officer of the Fund and any other person, who is duly authorized by
the Fund's Governing Board, to give Oral and Written Instructions on behalf of
the Fund. Such persons are listed in the Certificate attached hereto as the
Authorized Persons Appendix or such appendix as may be amended in writing by
the Fund's Governing Board from time to time. If Provident provides more than
one service hereunder, the Fund's designation of Authorized Persons may vary by
service.
(b) "Book-Entry System." The term "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.
(c) "CFTC." The term "CFTC" shall mean the Commodities
Futures Trading Commission.
(d) "Governing Board." The term "Governing Board" shall mean
the Fund's Board of Directors if the Fund is a corporation or the Fund's Board
of Trustees if the Fund is a trust, or, where duly authorized, a competent
committee thereof.
(e) "Oral Instructions." The term "Oral Instructions" shall
mean oral instructions received by PFPC from an Authorized Person or from a
person reasonably believed by PFPC to be an Authorized Person.
(f) "Provident". The term "Provident" shall mean Provident
National Bank or a subsidiary or affiliate of Provident National Bank.
(g) "SEC". The term "SEC" shall mean the Securities and
Exchange Commission.
(h) "Securities and Commodities Laws. The terms the "1933
Act" shall mean the Securities Act of 1933, as amended, the "1934 Act" shall
mean the Securities Exchange Act of 1934, as amended, and the "CEA" shall mean
the Commodities Exchange Act, as amended.
(i) "Services." The term "Services" shall mean the services
required to be and provided to the Fund by PFPC.
(j) "Shares." The term "Shares" shall mean the shares of
stock of any series or class of the Fund, or, where appropriate, units of
beneficial interest in a trust where the Fund is organized as a trust.
(k) "Written Instructions." The term "Written Instructions"
shall 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. Appointment.
The Fund hereby appoints PFPC to provide administration and
accounting services to the New York Municipal Money Market 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 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 Portfolio's advisory agreement or
agreements;
(d) a copy of the distribution agreement or agreements
relating to any class of Portfolio;
(e) a copy of the Fund's administration agreement if PFPC is
not providing the Fund with such services;
(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.
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.
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 Governing Board or of
the Fund's shareholders.
The Fund agrees to forward to PFPC Written Instructions confirming
oral Instructions except where such Oral Instructions are given by PFPC or its
affiliates 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.
(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 Provident 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 excuse PFPC when
an action or inaction on its part constitutes willful misfeasance, bad faith,
gross negligence or reckless disregard of its duties and obligations under this
Agreement.
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. 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, or the Fund'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 Fund,
copies of any such books and records shall be provided by PFPC to the Fund or
to an Authorized Person of the Fund, at the Fund'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 required to be maintained pursuant to Rule
31a-1 of the 1940 Act in connection with the Services and as specifically
set forth in Appendix A 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 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. 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 unless such failures result
from PFPC's own willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties and obligations under this Agreement.
11. Compensation.
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 Fund and PFPC.
12. Indemnification.
The Fund, on behalf of Portfolio 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 Fund or (ii) upon
Oral or Written Instructions. Neither PFPC, nor any of its nominees, shall be
indemnified against any liability (or any expenses incident to such liability)
arising out of PFPC's own willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties and obligations under this Agreement. Any
amounts payable by the Fund hereunder shall be satisfied only against the
Portfolio's assets and not against the assets of any other investment
portfolio of the Fund.
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 willful
misfeasance, bad faith, gross negligence or reckless disregard of its duties and
obligations 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 PFPC's failure to act in accordance with the
standard of care stated herein.
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 Administration and Accounting Services.
(a) Services on a Continuing Basis. PFPC will perform the following accounting
functions:
(i) Journalize the Portfolio's investment, capital share and income and
expense activities;
(ii) Verify investment buy/sell trade tickets and transmit trades to the
Fund's 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 of the Portfolio with the
custodian, and prepare the beginning cash balance available for
investment purposes;
(vi) Update the cash availability throughout the day as required;
(vii) Post to and prepare the Portfolio's 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 Fund management of any
proposed adjustments;
(x) Control all disbursements from the Portfolio and authorize such
disbursements upon Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine the Portfolio's net income;
(xiii) Obtain security market quotes from independent pricing services
approved by the Fund, or if such quotes are unavailable, then
obtain such prices from the management of the Fund, and in either
case calculate the market value of the Fund's Investments;
(xiv) Transmit or mail a copy of the daily portfolio valuation to the
Advisor;
(xv) Compute the net asset value of the Portfolio;
(xvi) As appropriate, compute the yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity; and
(xvii) 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.
(a) Services on a Continuing Basis. PFPC will provide the following
administration functions:
(i) Prepare quarterly broker security transactions summaries;
(ii) Supply various normal and customary Portfolio and Fund statistical
data as requested on an ongoing basis;
(iii) Prepare monthly security transaction listings;
(iv) Prepare for execution and file the Fund's Federal and state tax
returns;
(v) Prepare and file the Fund's Semi-Annual Reports with the SEC on
Form N-SAR;
(vi) Prepare and file with the SEC the Fund's annual, semi-annual, and
quarterly Shareholder reports; or
(vii) Assist with the preparation of registration statements and other
filings relating to the registration of Shares;
(viii) Monitor the Fund's status as a regulated investment company under
Sub-chapter M of the Internal Revenue Code of 1986, as amended;
(ix) Coordinate contractual relationships and communications between the
Fund and its contractual service providers;
(x) Qualify the Class O Shares for sale in each state in which the Fund's
Board of Directors determines to sell the Class O Shares and make all
filings and take all appropriate actions necessary to maintain and
renew the registration of the Class O Shares;
(xi) Monitor the Fund's compliance with the amounts and conditions of each
such state qualification; and
(xii) Maintain the Fund's fidelity bond as required by the 1940 Act and
obtain a director's and officer's liability policy.
16. Duration and Termination.
This Agreement shall continue until terminated by the Fund on sixty
(60) days' prior written notice to the other party or by PFPC on ninety (90)
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.
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 direct or indirect subsidiary of Provident National Bank or PNC
Financial Corp, provided that (i) PFPC gives the Fund thirty (30) days prior
written notice; (ii) the delegate agrees with PFPC and the Fund 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.
22. Miscellaneous.
This Agreement embodies the entire agreement and under standing
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.
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.
PROVIDENT FINANCIAL PROCESSING
CORPORATION
(SEAL) By: /s/ XXXXXXX X. XXXXX
--------------------
Title: Senior VP
(SEAL)
THE RBB FUND, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Title: President and Treasurer
APPENDIX A
[List Books and Records to be
Maintained by PFPC]
