Exhibit 8(a)
CUSTODIAN AGREEMENT
THIS AGREEMENT is made as of August 16, 1988 by and between
THE RBB FUND, INC., a Maryland corporation (the "Fund"), and PROVIDENT NATIONAL
BANK, a national banking association ("Provident").
W I T N E S S E T H :
WHEREAS, the Fund is registered as an open-end, diversified
management investment company under the Investment Company Act of 1940, as
amended (the '11940 Act"); and
WHEREAS, the Fund desires to retain Provident to serve as the
Fund's custodian and Provident is willing to serve as the Fund's custodian;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints Provident to act as
custodian of the securities, cash and other property belonging to each
investment portfolio (a "portfolio") of the Fund for the period and on the
terms set forth in this Agreement. Provident accepts such appointment and
agrees to furnish the services herein set forth in return for the compensation
as provided in Paragraph 21 of this Agreement. Provident agrees to comply with
all relevant provisions of the 1940 Act and applicable rules and regulations
thereunder. The Fund's Common Stock, $.001 par value (the "Shares") has been as
of the date hereof classified into fourteen different classes of Common Stock:
the "Class A Shares" the "Class B Shares", the "Class C Shares", the "Class D
Shares", the "Class E Shares' the "Class F Shares", the "Class G Shares", the
"Class H Shares", the "Class I Shares", the "Class J Shares", the "Class K
Shares", the "Class L Shares", the "Class M Shares", and the "Class N Shares",
respectively. The Fund may from time to time issue additional series or classes
of Shares or classify and reclassify shares of such series or class. Provident
shall identify to each such series or class property belonging to such series
or class and in such reports, confirmations and notices to the Fund called for
Under this Agreement shall identify the series or class to which such report,
confirmation or notice pertains.
2. Delivery of Documents. The Fund has furnished Provident
with copies properly certified or authenticated of each of the following:
(a) Resolutions of the Fund's Board of Directors
authorizing the appointment of Provident as custodian of the portfolio
securities, cash and other property belonging to the Fund and approving this
Agreement;
(b) Appendix A identifying and containing the
signatures of the Fund's officers and/or other persons authorized to issue Oral
Instructions and to sign Written Instructions, as hereinafter defined, on behalf
of the Fund;
(c) The Fund's Articles of Incorporation filed with
the Department of Assessments and Taxation of the State of Maryland on February
29, 1988 and all amendments thereto (such Articles of Incorporation, as
presently in effect and as they shall from time to time be amended, are herein
called the "Charter");
(d) The Fund's Articles Supplementary filed with
Department of Assessments and Taxation of the State of Maryland on March 24,
1988 and further Articles Supplementary filed with the State of Maryland (the
"Articles Supplementary").
(e) The Fund's By-Laws and all amendments thereto
(such By-Laws, as presently in effect and as they shall from time to time be
amended, are herein called the "By-Laws");
(f) Each Investment Advisory and Administration
Agreement between Provident Institutional Management Corporation (the "Advisor")
and the Fund on behalf of a class or series of the Fund (collectively, the
"Advisory Agreements") and each Sub-Advisory Agreement between Provident (which
in its capacity as Sub-Advisor is hereinafter referred to as the "Sub-Advisor")
and the Advisor on behalf of a class or series of the Fund (collectively with
the Advisory Agreements, the "Advisory Contracts");
(g) Each Distribution Agreement between Planco
Financial Services, Inc. ("Planco") and the Fund with respect to a class or
series of the Fund (collectively, the "Distribution Agreements") and the form of
each related Dealer Agreement for broker-dealers participating in the
distribution of any class or series of the Fund;
(h) Each Plan of Distribution pursuant to Rule 12b-1
under the Investment Company Act of 1940 with respect to a class or series of
the Fund (collectively, the "Distribution Plans");
(i) Each Transfer Agency Agreement between Provident
Financial Processing Corporation (the "Transfer Agent")
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and the Fund with respect to a class or classes of the Fund (collectively. the
"Transfer Agency Agreements");
(j) Each Shareholder Servicing Agreement with
respect to a class or series of the Fund (collectively, the "Shareholder
Servicing Agreements");
(k) Each Non-12b-l Shareholder Services Plan with
respect to a class or series of the Fund (collectively, the "Shareholder
Services Plans");
(1) The Fund's Notification of Registration filed
pursuant to Section 8(a) of the 1940 Act on Form N-8A under the 1940 Act as
filed with the Securities and Exchange Commission ("SEC") on March 24, 1988 and
all amendments thereto;
(m) The Fund's most recent Registration Statement on
Form N-1A under the Securities Act of 1933, as amended (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;
(n) The Fund's most recent prospectuses relating .to
any of the Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class
E Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class
J Shares, Class K Shares, Class L Shares, Class M Shares, and Class N Shares
(each such prospectus as presently in effect and all amendments and supplements
thereto herein called a "Prospectus"); and
(o) In the event that a Prospectus provides that a
portfolio of the Fund may engage in any transactions regulated by the Commodity
Futures Trading Commission ("CFTC"), before the Fund so engages on behalf of
such portfolio, a copy of either (i) a filed notice of eligibility to claim the
exclusion from the definition of "commodity pool operator" contained in Section
2(a)(1)(A) of the Commodity Exchange Act ("CEA") that is provided in Rule 4.5
under the CEA, together with all supplements as are required by the CFTC, or
(ii) a letter which has been granted the Fund by the CFTC which states that the
Fund will not be treated as a "pool" as defined in Section 4.10(d) of the CFTC's
General Regulations, or (iii) a letter which has been granted the Fund by the
CFTC which states that the CFTC will not take any enforcement action if the Fund
does not register as a "commodity pool operator."
The Fund will furnish Provident from time to time with copies,
properly certified or authenticated, of all amendments of or supplements to the
foregoing, if any.
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3. Definitions.
(a) "Authorized Person". As used in this Agreement,
the term "Authorized Person" means any of the officers of the Fund and any other
person. whether or not any such person is an officer or employee of the Fund,
duly authorized by the Board of Directors of the Fund to give Oral and Written
Instructions on behalf of the Fund and listed on the Certificate annexed hereto
as Appendix A or any amendment thereto as may be received by Provident from time
to time.
(b) "Book-Entry System". As used in this Agreement,
the term "Book-Entry System" means the 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 a
clearing agency registered with the SEC under Section 17A of the Securities
Exchange Act of 1934 (the "1934 Act").
(c) "Oral Instructions". As used in this Agreement,
the term "Oral Instructions" means oral instructions actually received by
Provident from an Authorized Person or from a person reasonably believed by
Provident to be an Authorized Person. The Fund agrees to deliver to Provident,
at the time and in the manner specified in Paragraph 8(b) of this Agreement,
Written Instructions confirming Oral Instructions.
(d) "Property". The term "Property", as used in this
Agreement, means:
(i) any and all securities and other property which
the Fund may from time to time deposit, or cause to be deposited, with Provident
or which Provident may from time to time hold for the Fund;
(ii) all income in respect of any of such securities
or other property;
(iii) all proceeds of the sale of any of such
securities or other property; and
(iv) all proceeds of the sale of securities issued
by the Fund, which are received by Provident from time to time from or on behalf
of the Fund.
(e) "Written Instructions". As used in this
Agreement, the term "Written Instructions" means written instructions delivered
by hand, mail, tested telegram, cable, telex or facsimile sending device, and
received by Provident and signed by an Authorized Person.
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4. Delivery and Registration of the Property. The Fund will
deliver or cause to be delivered to Provident all securities and all moneys
owned by it, including cash received for the issuance of its Shares. at any time
during the period of this Agreement. Provident will not be responsible for such
securities and such moneys until actually received by it. All securities
delivered to Provident (other than in bearer form) shall be registered in the
name of the Fund or in the name of a nominee of the Fund or in the name of any
nominee of Provident (with or without indication of fiduciary status), or in the
name of any sub-custodian or any nominee of any such sub-custodian appointed
pursuant to Paragraph 6 hereof or shall be properly endorsed and in form for
transfer satisfactory to Provident.
5. Receipt and Disbursement of Money.
(a) Provident shall open and maintain a separate custodial account or accounts
in the name of each portfolio of the Fund, subject only to draft or order by
Provident acting pursuant to the terms of this Agreement and shall hold in such
account or accounts, subject to the provisions hereof, all cash received by it
from or for the account of the Fund. Provident shall make payments of cash to,
or for the account of, each portfolio of the Fund from such cash only (i) for
the purchase of securities for the Fund's portfolios as provided in Paragraph 13
hereof; (ii) upon receipt of Written Instructions, for the payment of interest,
dividends, taxes, administration, accounting, distribution, advisory or
management fees or expenses which are to be borne by the Fund under the terms of
this Agreement, the Advisory Contracts, the Transfer Agency Agreements the
Distribution Agreements and the Shareholder Servicing Agreements; (iii) upon
receipt of Written Instructions, for payments in connection with the conversion,
exchange or surrender of securities owned or subscribed to by the Fund and held
by or to be delivered to Provident; (iv) to a sub-custodian pursuant to
Paragraph 6 hereof; (v) for the redemption of Fund Shares; (vi) for payment of
the amount of dividends received in respect of securities sold short; or (vii)
upon receipt of Written Instructions, for other proper Fund purposes. No payment
pursuant to (i) above shall be made unless Provident has received a copy of the
broker's or dealer's confirmation or the payee's invoice, as appropriate.
(b) Provident is hereby authorized to endorse and collect all
checks, drafts or other orders for the payment of money received as custodian
for the account of the Fund.
6. Receipt of Securities.
(a) Except as provided by Paragraph 7 hereof, Provident shall hold
and physically segregate in separate
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accounts, identifiable at all times from those of any other persons, firms, or
corporations, all securities and non-cash property received by it for the
account of each portfolio of the Fund. All such securities and non-cash
property are to be held or disposed of by Provident for each portfolio of the
Fund pursuant to the terms of this Agreement. In the absence of Written
Instructions accompanied by a certified resolution of the Fund's Board of
Directors authorizing the transaction, Provident shall have no power or
authority to withdraw, deliver, assign, hypothecate, pledge or otherwise
dispose of any such securities and investments except in accordance with the
express terms provided for in this Agreement. In no case may any Director,
officer, employee or agent of the Fund withdraw any securities. In connection
with its duties under this Paragraph 6, Provident may, at its own expense,
enter into sub-custodian agreements with other banks or trust companies for the
receipt of certain securities and cash to be held by Provident for the account
of the Fund pursuant to this Agreement; provided that each such bank or trust
company has an aggregate capital, surplus and undivided profits, as shown by
its last published report, of not less than one million dollars ($1,000,000)
for a Provident subsidiary or affiliate, or of not less than twenty million
dollars ($20,000,000) if such bank or trust company is not a Provident
subsidiary or affiliate and that in either case such bank or trust company
agrees with Provident to comply with all relevant provisions of the 1940 Act
and applicable rules and regulations thereunder. Provident shall remain
responsible for the performance of all of its duties under this Agreement and
shall hold the Fund harmless from the acts and omissions, under the standards
of care provided for herein, of any bank or trust company that it might choose
pursuant to this Paragraph 6.
(b) Where securities are transferred to an account of the Fund
established pursuant to Paragraph 7 hereof, Provident shall also by book-entry
or otherwise identify as belonging to the applicable portfolio of Fund the
quantity of securities in a fungible bulk of securities registered in the name
of Provident (or its nominee) or shown in Provident's account on the books of
the Book-Entry System. At least monthly and from time to time, Provident shall
furnish the Fund with a detailed statement of the Property held for each
portfolio of the Fund under this Agreement.
7. Use of Book-Entry System. The Fund shall deliver to Provident
certified resolutions of the Board of Directors of the Fund approving,
authorizing and instructing Provident on a continuous and on-going basis until
instructed to the contrary by Oral or Written Instructions actually received by
Provident (a) to deposit in the Book-Entry System all securities belonging to
each portfolio of the Fund eligible for deposit therein and (b) to utilize the
Book-Entry System to the extent possible in
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connection with settlements of purchases and sales of securities by each
portfolio of the Fund, and deliveries and returns of securities loaned, subject
to repurchase agreements or used as collateral in connection with borrowings.
Without limiting the generality of such use, it is agreed that the following
provisions shall apply thereto:
(a) Securities and any cash of a portfolio of the Fund deposited
in the Book-Entry System will at all times be segregated from any assets and
cash controlled by Provident in other than a fiduciary or custodian capacity but
may be commingled with other assets held in such capacities. Provident and its
sub-custodian, if any, will pay out money only upon receipt of securities and
will deliver securities only upon the receipt of money.
(b) All books and records maintained by Provident which relate to
the Fund's participation in the Book-Entry System will at all times during
Provident's regular business hours be open to the inspection of the Fund's duly
authorized employees or agents, and the Fund will be furnished with all
information in respect of the services rendered to it as it may require.
(c) Provident will provide the Fund with copies of any report
obtained by Provident on the system of internal accounting control of the
Book-Entry System promptly after receipt of such a report by Provident.
Provident will also provide the Fund with such reports on its own system of
internal control as the Fund may reasonably request from time to time.
8. Instructions Consistent with Charter and By-Laws.
(a) Unless otherwise provided in this Agreement, Provident shall
act only upon Oral and Written Instructions. Although Provident may know of the
provisions of the Charter and By-Laws of the Fund, Provident may assume that any
Oral or Written Instructions received hereunder are not in any way inconsistent
with any provisions of such Charter or By-Laws or any vote, resolution or
proceeding of the Shareholders, or of the Board of Directors, or of any
committee thereof.
(b) Provident shall be entitled to rely upon any Oral Instructions
and any Written Instructions actually received by Provident pursuant to this
Agreement. The Fund agrees to forward to Provident Written Instructions
confirming Oral Instructions in such manner that the Written Instructions are
received by Provident by the close of business of the same day that such Oral
Instructions are given to Provident. The Fund agrees that the fact that such
confirming Written Instructions are not received by Provident shall in no way
affect the validity of the transactions or enforceability of the transactions
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authorized by the Fund by giving Oral Instructions. The Fund agrees that
Provident shall incur no liability to the Fund in acting upon Oral Instructions
given to Provident hereunder concerning such transactions provided such
instructions reasonably appear to have been received from an Authorized Person.
9. Transactions Not Requiring Instructions. In the absence of contrary
Written Instructions, Provident is authorized to take the following actions:
(a) Collection of Income and Other Payments. Provident shall:
(i) collect and receive for the account of each portfolio of the
Fund, all income and other payments and distributions, including (without
limitation) stock dividends, rights, bond coupons, option premiums and similar
items, included or to be included in the Property, and promptly advise the Fund
of such receipt and shall credit such income, as collected, to the applicable
portfolio's custodian account;
(ii) endorse and deposit for collection, in the name of the
applicable portfolio of the Fund, checks, drafts. or other orders for the
payment of money on the same day as received;
(iii) receive and hold for the account of each portfolio of the
Fund all securities received as a distribution on the portfolio's securities as
a result of a stock dividend, share split-up or reorganization,
recapitalization, readjustment or other rearrangement or distribution of rights
or similar securities issued with respect to any securities belonging to the
portfolio held by Provident hereunder;
(iv) present for payment and collect the amount payable upon all
securities which may mature or be called, redeemed, or retired, or otherwise
become payable on the date such securities become payable; and
(v) take any action which may be necessary and proper in
connection with the collection and receipt of such income and other payments and
the endorsement for collection of checks, drafts, and other negotiable
instruments as described in Paragraph 24 of this Agreement.
(b) Miscellaneous Transactions. Provident is authorized to deliver
or cause to be delivered Property against
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payment or other consideration or written receipt therefor in the following
cases:
(i) for examination by a broker selling for the account of a
portfolio of the Fund in accordance with street delivery custom;
(ii) for the exchange of interim receipts or temporary securities
for definitive securities; and
(iii) for transfer of securities into the name of a portfolio of
the Fund or Provident or nominee of either, or for exchange of securities for a
different number of bonds, certificates, or other evidence, representing the
same aggregate face amount or number of units bearing the same interest rate,
maturity date and call provisions, if any; provided that, in any such case, the
new securities are to be delivered to Provident.
10. Transactions Requiring Instructions. Upon receipt of Oral or
Written Instructions and not otherwise, Provident, directly or through the use
of the Book-Entry System, shall:
(a) execute and deliver to such persons as may be designated in
such Oral or Written Instructions, proxies, consents, authorizations, and any
other instruments whereby the authority of the Fund as owner of any securities
on behalf of a portfolio may be exercised;
(b) deliver any securities held for a portfolio of the Fund
against receipt of other securities or cash issued or paid in connection with
the liquidation, reorganization, refinancing, tender offer, merger,
consolidation or recapitalization of any corporation, or the exercise of any
conversion privilege;
(c) deliver any securities held for a portfolio of the Fund to any
protective committee, reorganization committee or other person in connection
with the reorganization, refinancing, merger, consolidation. recapitalization or
sale of assets of any corporation, and receive and hold under the terms of this
Agreement such certificates of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such delivery;
(d) make such transfers or exchanges of the assets of a portfolio
of the Fund and take such other steps as shall be stated in said Oral or Written
Instructions to be for the purpose of effectuating any duly authorized plan
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of liquidation, reorganization, merger, consolidation or recapitalization of
the Fund;
(e) release securities belonging to a portfolio of the Fund to any
bank or trust company for the purpose of pledge or hypothecation to secure any
loan incurred by a portfolio of the Fund; provided, however, that securities
shall be released only upon payment to Provident of the monies borrowed, except
that in cases where additional collateral is required to secure a borrowing
already made, subject to proper prior authorization, further securities may be
released for that purpose; and repay such loan upon redelivery to it of the
securities pledged or hypothecated therefor and upon surrender of the note or
notes evidencing the loan;
(f) release and deliver securities owned by a portfolio of the
Fund in connection with any repurchase agreement entered into on behalf of a
portfolio of the Fund, but only on receipt of payment therefor; and pay out
moneys of a portfolio of the Fund in connection with such repurchase agreements,
but only upon the delivery of the securities; and
(g) otherwise transfer, exchange or deliver securities in
accordance with Oral or Written Instructions.
11. Segregated Accounts.
(a) Provident shall upon receipt of Written or Oral Instructions
establish and maintain a segregated account or accounts on its records for and
on behalf of each portfolio of the Fund, into which account or accounts may be
transferred cash and/or securities, including securities in the Book-Entry
System (i) for the purposes of compliance by the Fund with the procedures
required by a securities or option exchange, providing such procedures comply
with the 1940 Act and Release No. 10666 or any subsequent release or releases of
the SEC relating to the maintenance of segregated accounts by registered
investment companies, and (ii) for other proper corporate purposes, but only, in
the case of clause (ii), upon receipt of Written Instructions.
(b) Provident may enter into separate custodial agreements with
various futures commission merchants ("FCMs") that the Fund uses (each an "FCM
Agreement"). pursuant to which the Fund's margin deposits in any transactions
involving futures contracts and options on futures contracts will be held by
Provident in accounts (each an "FCM Account") subject to the disposition by the
FCM involved in such contracts in accordance with the customer contract between
FCM and the Fund ("FCM
10
Contract"), SEC rules governing such segregated accounts, CFTC rules and the
rules of the applicable commodities exchange. Such FCM Agreements shall only be
entered into upon receipt of Written Instructions from the Fund which state
that (i) a customer agreement between the FCM and the Fund has been entered
into; and (ii) the Fund is in compliance with all the rules and regulations of
the CFTC. Transfers of initial margin shall be made into an FCM Account only
upon Written Instructions; transfers of premium and variation margin may be
made into an FCM Account pursuant to Oral Instructions. Transfers of funds from
an FCM Account to the FCM for which Provident holds such an account may only
occur upon certification by the FCM to Provident that pursuant to the FCM
Agreement and the FCM Contract, all conditions precedent to its right to give
Provident such instruction have been satisfied.
12. Dividends and Distributions. The Fund shall furnish Provident
with appropriate evidence of action by the Fund's Board of Directors declaring
and authorizing the payment of any dividends and distributions. With respect to
each portfolio of the Fund, upon receipt by Provident of Written Instructions
with respect to dividends and distributions declared by the Fund's Board of
Directors and payable to Shareholders who have elected in the proper manner to
receive their distributions or dividends in cash, and in conformance with
procedures mutually agreed upon by Provident, the Fund, and the Fund's Transfer
Agent, Provident shall pay to the Fund's Transfer Agent, as agent for the
Shareholders, an amount equal to the amount indicated in said Written
Instructions as payable by each portfolio of the Fund to such Shareholders for
distribution in cash by the Transfer Agent to such Shareholders. In lieu of
paying the Fund's Transfer Agent cash dividends and distributions, Provident may
arrange for the direct payment of cash dividends and distributions to
Shareholders by Provident in accordance with such procedures and controls as are
mutually agreed upon from time to time by and among the Fund, Provident and the
Fund's Transfer Agent.
In accordance with the applicable Prospectus, the Internal Revenue
Code and regulations promulgated thereunder, and with such procedures and
controls as are mutually agreed upon from time to time by and among the Fund,
Provident and the Fund's Transfer Agent, Provident shall arrange for the
establishment of XXX custodian accounts for such Shareholders holding Shares
through XXX accounts.
13. Purchases of Securities. Promptly after each decision to
purchase securities by the Advisor, the Fund, through the Advisor, shall deliver
to Provident Oral Instructions specifying with respect to each such purchase:
(a) the name of the issuer and the title of the securities, (b) the number of
shares or the principal amount purchased and accrued interest, if
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any, (c) the date of purchase and settlement, (d) the purchase price per unit,
(e) the total amount payable upon such purchase, (f) the name of the person from
whom or the broker through whom the purchase was made, and (g) the portfolio of
the Fund to which such purchase applies. Provident shall upon receipt of
securities purchased by or for a portfolio of the Fund pay out of the moneys
held for the account of such portfolio of the Fund the total amount payable to
the person from whom or the broker through whom the purchase was made, provided
that the same conforms to the total amount payable as set forth in such Oral
Instructions.
14. Sales of Securities. Promptly after each decision to sell
securities by the Advisor or exercise of an option written by the Fund, the
Fund, through the Advisor, shall deliver to Provident Oral Instructions,
specifying with respect to each such sale: (a) the name of the issuer and the
title of the security, (b) the number of shares or principal amount sold, and
accrued interest, if any, (c) the date of sale, (d) the sale price per unit, (e)
the total amount payable to the Fund upon such sale, (f) the name of the broker
through whom or the person to whom the sale was made, and (g) the portfolio of
the Fund to which such sale applies. Provident shall deliver the securities
-upon receipt of the total amount payable to the Fund upon such sale, provided
that the same conforms to the total amount payable as set forth in such Oral
Instructions. Subject to the foregoing, Provident may accept payment in such
form as shall be satisfactory to it, and may deliver securities and arrange for
payment in accordance with the customs prevailing among dealers in securities.
15. Records. The books and records pertaining to the Fund which
are in the possession of Provident 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 and regulations and shall, to the extent
practicable, be maintained separately for each portfolio of the Fund. The Fund,
or the Fund's authorized representatives, shall have access to such books and
records at all times during Provident's normal business hours. Upon the
reasonable request of the Fund. copies of any such books and records shall be
provided by Provident to the Fund or the Fund's authorized representative at the
Fund's expense.
16. Reports.
(a) Provident shall furnish the Fund the following reports:
(1) such periodic and special reports as the Fund may reasonably
request;
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(2) a monthly statement summarizing all transactions and entries
for the account of each portfolio of the Fund, listing the portfolio securities
belonging to each portfolio of the Fund with the adjusted average cost of each
issue and the market value at the end of such month, and stating the cash
account of each portfolio of the Fund including disbursements;
(3) the reports to be furnished to the Fund pursuant to Rule
17f-4; and
(4) such other Information as may be agreed upon from time to time
between the Fund and Provident.
(b) Provident shall transmit promptly to the Fund
any proxy statement, proxy materials, notice of a call or conversion or similar
communications received by it as Custodian of the Property.
17. Cooperation with Accountants. Provident shall cooperate with
the Fund's independent public accountants and 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 from time to time by the Fund.
18. Confidentiality. Provident agrees on behalf of itself and its
employees to treat confidentially all records and other information relative to
the Fund and its prior, present, or potential Shareholders, 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 Provident 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.
19. Right to Receive Advice.
(a) Advice of Fund. If Provident shall be in doubt
as to any action to be taken or omitted by it, it may request, and shall
receive, from the Fund directions or advice, including Oral or Written
Instructions where appropriate.
(b) Advice of Counsel. If Provident shall be in
doubt as to any question of law involved in any action to be taken or omitted by
Provident, it may request advice at its own cost from counsel of its own
choosing (who may be counsel for the Advisor, the Fund or Provident, at the
option of Provident).
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(c) Conflicting Advice. In case of conflict between
directions, advice or Oral or Written Instructions received by Provident
pursuant to subparagraph (a) of this paragraph and advice received by Provident
pursuant to subparagraph (b) of this paragraph. Provident shall be entitled to
rely on and follow the advice received pursuant to the latter provision alone.
(d) Protection of Provident. Provident shall be
protected in any action or inaction which it takes in reliance on any
directions, advice or Oral or Written Instructions received pursuant to
subparagraphs (a) or (b) of this paragraph which Provident, after receipt of any
such directions, advice or Oral or Written Instructions, in good faith believes
to be consistent with such directions, advice or Oral or Written Instructions,
as the case may be. However, nothing in this paragraph shall be construed as
imposing upon Provident any obligation (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 when received, unless, under the terms of
another provision of this Agreement. the same is a condition to Provident's
properly taking or omitting to take such action. Nothing in this subsection
shall excuse Provident when an action or omission on the part of Provident
constitutes willful misfeasance, bad faith, gross negligence or reckless
disregard by Provident of any duties or obligations under this Agreement.
20. Compliance with Governmental Rules and Regulations.
Provident. assumes no responsibility for insuring that the Fund complies with
all applicable requirements of the 1933 Act, the Securities Exchange Act of
1934, as amended (the "1934 Act"), the 1940 Act, the CEA, and any laws, rules
and regulations of governmental authorities having jurisdiction.
21. Compensation. As compensation for the services rendered by
Provident during the term of this Agreement, the Fund will pay to Provident,
with respect to each portfolio of the Fund, monthly fees that shall be agreed
upon from time to time in writing by Provident and the Fund.
22. Indemnification. The Fund, as sole owner of the Property,
agrees to indemnify and hold harmless Provident 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, all
as or to be amended from time to time) and expenses, including (without
limitation) attorneys' fees and disbursements, arising directly or indirectly
(a) from the fact that securities included in the Property are registered in
the name of any such nominee or (b) without limiting the generality of the
foregoing clause (a) from
14
any action or thing which Provident takes or does or omits to take or do (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, provided, that neither Provident 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
Provident's or such nominee's own willful misfeasance, bad faith, negligence or
reckless disregard of its duties or responsibilities specifically described in
this Agreement. In the event of any advance of cash for any purpose made by
Provident resulting from Oral or Written Instructions of the Fund, or in the
event that Provident or its nominee shall incur or be assessed any taxes,
charges, expenses, assessments, claims or liabilities in connection with the
performance of this Agreement, except such as may arise from its or its
nominee's own negligent action, negligent failure to act or willful misconduct,
any Property at any time held for the account of the Fund shall be security
therefor.
23. Responsibility of Provident. Provident 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 Provident in writing. In the
performance of its duties hereunder, Provident shall be obligated to exercise
care and diligence and to act in good faith and to use its best efforts within
reasonable limits to insure the accuracy and completeness of all services
performed under this Agreement. Provident shall be responsible for its own
negligent failure to perform its duties under this Agreement. but to the extent
that duties, obligations and responsibilities are not expressly set forth in
this Agreement, Provident shall not be liable for any act or omission which
does not constitute willful misfeasance, bad faith or gross negligence on the
part of Provident or reckless disregard of such duties, obligations and
responsibilities. Without limiting the generality of the foregoing or of any
other provision of this Agreement, Provident in connection with its duties
under this Agreement shall not be under any duty or obligation to inquire into
and shall not be liable for or in respect of (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. if
any, and which Provident reasonably believes to be genuine; (b) the validity or
invalidity of the issuance of any securities included or to be included in the
Property. the legality or illegality of the purchase of such securities, or the
propriety or impropriety of the amount paid therefor; (c) the legality or
illegality of the sale (or exchange) of any Property or the propriety or
impropriety of the amount for which such Property is sold (or exchanged); or
(d) delays or errors or loss of data occurring by reason of circumstances
beyond Provident's control, including acts of civil or military authority,
national
15
emergencies, labor difficulties, fire, mechanical breakdown, flood or
catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply, nor shall Provident be under any
duty or obligation to ascertain whether any Property at any time delivered to
or held by Provident may properly be held by or for the Fund.
24. Collections. All collections of monies or other property in
respect, or which are to become part, of the Property (but not the safekeeping
thereof upon receipt by Provident) shall be at the sole risk of the Fund. In
any case in which Provident does not receive any payment due the Fund within a
reasonable time after Provident has made proper demands for the same, it shall
so notify the Fund in writing, including copies of all demand letters, any
written responses thereto, and memoranda of all oral responses thereto and to
telephonic demands, and await instructions from the Fund. Provident shall not
be obliged to take legal action for collection unless and until reasonably
indemnified to its satisfaction. Provident shall also notify the Fund as soon
as reasonably practicable whenever income due on securities is not collected in
due course.
25. Duration and Termination. This Agreement shall continue with
respect to each portfolio of the Fund until termination by the Fund on behalf
of a portfolio or by Provident, in either case on sixty (60) days written
notice. Upon any termination of this Agreement, pending appointment of a
successor to Provident or vote of the shareholders of the applicable portfolio
of the Fund to dissolve or to function without a custodian of its cash,
securities or other property, Provident shall not deliver cash, securities or
other property of the applicable portfolio of the Fund to the Fund, but may
deliver them to a bank or trust company of its own selection, having an
aggregate capital, surplus and undivided profits, as shown by its last
published report, of not less than twenty million dollars ($20,000,000) as a
custodian for such portfolio to be held under terms similar to those of this
Agreement, provided, however, that Provident shall not be required to make any
such delivery or payment until full payment shall have been made by such
portfolio of the Fund of all liabilities constituting a charge on or against
the properties of such portfolio of the Fund then held by Provident or on or
against Provident and until full payment shall have been made to Provident of
all of its fees, compensation, costs and expenses.
26. Notices. All notices and other communications, including
Written Instructions (collectively referred to as "Notice" or "Notices" in this
paragraph), hereunder shall be in writing or by confirming telegram, cable,
telex or facsimile sending device. Notices shall be addressed (a) if to
Provident at 00xx xxx Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
16
marked for the attention of the Custodian Services Department (or its
successor); (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. If the location of the
sender of a Notice and the address of the addressee thereof are, at the time of
sending, more than 100 miles apart, the Notice may be sent by first-class mail,
in which case it shall be deemed to have been given five days after it is sent,
or if sent by confirming telegram, cable, telex or facsimile sending device, it
shall be deemed to have been given immediately, and, if the location of the
sender of a Notice and the address of the addressee thereof are, at the time of
sending, not more than 100 miles apart, the Notice may be sent by first-class
mail, in which case it shall be deemed to have been given three days after it
is sent, or if sent by messenger, it shall be deemed to have been given on the
day it is delivered, or if sent by confirming telegram, cable, telex or
facsimile sending device, it shall be deemed to have been given immediately.
All postage, cable, telegram, telex and facsimile sending device charges
arising from the sending of a Notice hereunder shall be paid by the sender.
27. Further Actions. Each party agrees to perform such further
acts and execute such further documents as are necessary to effectuate the
purposes hereof.
28. Amendments. This Agreement or any part hereof may be changed
or waived only by an instrument in writing signed by the party against which
enforcement of such change or waiver is sought.
29. Delegation. On thirty (30) days prior written notice to the
Fund, Provident 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) the delegate agrees with Provident to comply
with all relevant provisions of the 1940 Act; and (ii) Provident and such
delegate shall 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. Upon such
assignment and delegation, Provident shall be relieved of any further duties or
obligations hereunder and from any liability for any acts or failures to act
occurring thereafter.
30. 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.
17
31. Miscellaneous. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings relating to the subject matter hereof, provided that the
parties hereto 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 Pennsylvania and
governed by Pennsylvania 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.
[SEAL] THE RBB FUND, INC.
Attest: _____________ By /s/Xxx XxXxx Xxxxxxx
--------------------
Xxx XxXxx Thomson
[SEAL] PROVIDENT NATIONAL BANK
Attest: _____________ By /s/Xxxx X. McGlaghlan
---------------------
Xxxx X. McGlaghlan
APPENDIX A
Authorized Persons
(name) (signature)
(name) (signature)
(name) (signature)
(name) (signature)
(name) (signature)
(name) (signature)
(name) (signature)
