Exhibit 9(B)
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of the 3rd day of July, 1989
by and between PCS CASH FUND, INC., a Maryland Corporation (the
"Fund"), and PROVIDENT FINANCIAL PROCESSING CORPORATION ("PFPC"),
a Delaware corporation which is an indirect wholly-owned
subsidiary of PNC Financial Corp.
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 "1940 Act"); and
WHEREAS, the Fund wishes to retain PFPC to provide
certain administration and accounting services with respect to
shares of the Fund's three investment portfolios PCS Money Market
Portfolio, PCS Tax-Free Money Market Portfolio, and PCS
Government Obligations Money Market Portfolio, and PFPC: is
willing to furnish such services;
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 PFPC to
provide certain administration and accounting services to the
Fund for the period and on the terms set forth in this Agreement.
PFPC accepts such appointment and agrees to furnish the services
herein set forth in return for the compensation as provided in
Paragraph 12 of this Agreement. PFPC agrees to comply with all
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relevant provisions of the 1940 Act and applicable rules and
regulations thereunder. The Fund may from time to time issue
separate series or classes or classify and reclassify shares of
such series or class. PFPC 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
PFPC with copies properly certified or authenticated of each of
the following:
(a) Resolutions of the Fund's Board of Directors
authorizing the appointment of PFPC to provide certain
administration and accounting services to the Fund and approving
this Agreement;
(b) Appendix A identifying and containing the
signatures of the Fund's officers and 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 January 5, 1989 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");
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(d) 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 "By-Laws");
(e) The Investment Advisory Agreement between
Xxxxxx Xxxxxxx Asset Management Inc. (the "Advisor") and the Fund
dated as of July 3, 1989 (the "Advisory Agreement");
(f) The Distribution Agreement between the Fund
and Xxxxxx Xxxxxxx & Co. Incorporated (the "Distributor") dated
as of July 3, 1989 (the "Distribution Agreement");
(g) The Custodian Agreement between Provident
National Bank ("Provident") and the Fund dated as of July 3, 1989
(the "Custodian Agreement");
(h) The Transfer Agency Agreement between
Provident Financial Processing Corporation and the Fund dated as
of July 3, 1989 (the "Transfer Agency Agreement");
(i) 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 January _, 1989;
(j) The Fund's most recent Registration Statement
on Form N-1A under the Securities Act of 1933 (the "1933 Act")
(File No. 33-26417) and under the 1940 Act, as filed with the SEC
on January _, 1989 relating to shares of the Fund's Common Stock
(hereinafter "Shares"), $.001 par value, and all amendments
thereto;
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(k) The Fund's most recent prospectus or
prospectuses relating to Shares (such prospectus, or
prospectuses, and all amendments and supplements thereto are
herein called the "Prospectus"); and
(l) Before the Fund engages in any transactions
regulated by the Commodity Futures Trading Commission ("CFTC"), 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 PFPC from time to time with
copies, properly certified or authenticated, of all amendments of
or supplements to the foregoing, if any.
3. Definitions.
(a) "Authorized Person". As used in this
Agreement, the term "Authorized Person" means any officer 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
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behalf of the Fund and listed on Appendix A listing persons duly
authorized to give Oral and Written Instructions on behalf of the
Fund as may be received by PFPC from time to time.
(b) "Oral Instructions". As used in this
Agreement, the term "Oral Instructions" means oral instructions
actually received by PFPC from an Authorized Person or from a
person reasonably believed by PFPC to be an Authorized Person.
The Fund agrees to deliver to PFPC, at the time and in the manner
specified in Paragraph 4(b) of this Agreement, Written
Instructions confirming Oral Instructions.
(c) "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 PFPC, signed
by two Authorized Persons.
4. Instructions Consistent with Charter, etc.
(a) Unless otherwise provided in this Agreement,
PFPC shall act only upon Oral and Written Instructions. Although
PFPC may know of the provisions of the Charter and By-Laws of the
Fund, PFPC 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) PFPC shall be entitled to rely upon any Oral
Instructions and any Written Instructions actually received by
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PFPC pursuant to this Agreement. The Fund agrees to forward to
PFPC Written Instructions confirming Oral Instructions in such
manner that the Written Instructions are received by PFPC,
whether by hand delivery, telex, facsimile sending device or
otherwise, by the close of business of the same day that such
Oral Instructions are given to PFPC. The Fund agrees that the
fact that such confirming Written Instructions are not received
by PFPC shall in no way affect the validity of the transactions
or enforceability of the transactions authorized by the Fund by
giving Oral Instructions. The Fund agrees that PFPC shall incur
no liability to the Fund in acting upon Oral Instructions given
to PFPC hereunder concerning such transactions, provided such
instructions reasonably appear to have been received from an
Authorized Person.
5. Services on a Continuing Basis.
(a) PFPC will perform the following accounting
functions on a daily basis:
(1) Journalize the Fund's investment,
capital share and income and expense activities;
(2) Verify investment buy/sell trade
tickets when received from the Advisor and transmit trades
to the Fund's custodian for proper settlement;
(3) Maintain individual ledgers for
investment securities;
(4) Maintain historical tax lots for each
security;
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(5) Reconcile cash and investment balances
of the Fund with the custodian, and provide the Advisor with
the beginning cash balance available for investment
purposes;
(6) Update the cash availability throughout
the day as required by the Advisor;
(7) Post to and prepare the Fund; Statement
of Assets and Liabilities and the Statement of Operations;
(8) Calculate various contractual expenses
(e.g., advisory and custody fees);
(9) Develop expense budgets, monitor the
expense accruals and notify Fund management of any proposed
adjustments;
(10) Control all disbursements from the Fund
and authorize such disbursements upon Written Instructions;
(11) Calculate capital gains and losses;
(12) Determine the Fund's net income;
(13) Obtain security market quotes from
independent pricing services, 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;
(14) Transmit or mail a copy of the daily
portfolio valuation to the Advisor;
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(15) Determine the Fund's daily distributable
income according to procedures described in the Prospectus
and Statement of Additional Information;
(16) Compute the net asset value of the Fund;
and
(17) Compute the Fund's yields, total return,
expense ratios, portfolio turnover rate and portfolio
average dollar weighted maturity.
(b) In addition to the accounting services
described in the foregoing Paragraph 5(a), PFPC will:
(1) Prepare monthly financial statements,
which will include the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses;
(2) Prepare quarterly broker security
transactions summaries;
(3) Prepare monthly security transaction
listings;
(4) Supply various fund statistical data as
requested on an ongoing basis;
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(5) Prepare for execution and file the
Fund's Federal and state income tax returns and Federal
excise tax returns;
(6) Prepare and file the Fund's Semi-Annual
Reports with the SEC on Form N-SAR;
(7) Prepare and file with the SEC the Fund's
annual, semi-annual, and quarterly Shareholder reports;
(8) Assist in the filing of the registration
statements on Form N-1A;
(9) Prepare and file Form 24F-2 Notices
required to be filed with the SEC relating to the
registration of Shares;
(10) After the initial state registration of
the Fund's Shares:
(i) make all of the filings and take
all appropriate actions necessary to maintain and renew
state registration of the Fund's Shares;
(ii) monitor the Fund's compliance with
the amounts and the conditions of each state's
registration of the Fund's Shares;
(11) Prepare and file annual sales reports
with state agencies responsible for enforcement of blue sky
laws in such jurisdictions as requested by the Fund, and
file such other materials with such agencies as requested by
the Fund;
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(12) Monitor the Fund's status as a regulated
investment company under Sub-chapter M of the Internal
Revenue Code of 1986, as amended;
(13) Maintain the Fund's fidelity bond as
required by the 1940 Act and obtain a directors and officers
liability policy; and
(14) Determine annual ordinary income and
capital gain distributions to Shareholders to avoid federal
excise tax to the extent possible based on information given
PFPC.
6. Records. PFPC shall keep the following records:
(a) all books and records with respect to the
Fund's books of account; and
(b) records of the Fund's securities
transactions.
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 and
rules and regulations. The Fund, or the Fund's authorized
representatives, 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 the Fund's
authorized representative at the Fund's expense.
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7. 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.
8. Confidentiality. PFPC 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 and relative to the Advisor and its prior,
present or potential customers, 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 PFPC 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.
9. Equipment Failures. In the event of equipment
failures beyond PFPC's control, PFPC shall, at no additional
expense to the Fund, take reasonable steps to minimize service
interruptions but shall have no liability with respect thereto.
PFPC shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable
provision for emergency use of electronic data processing
equipment to the extent appropriate equipment is available.
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10. Right to Receive Advice.
(a) Advice of Fund. If PFPC 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 PFPC shall tie in
doubt as to any question of law involved in any action to be
taken or omitted by PFPC, it may request advice at its own cost
from counsel of its own choosing (who may be counsel for the
Advisor, the Fund or PFPC, at the option of PFPC).
(c) Conflicting Advice. In case of conflict
between directions, advice or Oral or Written Instructions
received by PFPC pursuant to subsection (a) of this paragraph and
advice received by PFPC pursuant to subsection (b) of this
paragraph, PFPC shall be entitled to rely on and follow the
advice received pursuant to the latter provision alone.
(d) Protection of PFPC. PFPC 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 subsections (a) or (b) of this paragraph which PFPC,
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 PFPC any obligation (i) to seek such directions,
advice or Oral or Written Instructions, or (ii) to act in
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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 PFPC's
properly taking or omitting to take such action. Nothing in this
subsection shall excuse PFPC when an action or omission on the
part of PFPC constitutes willful misfeasance, bad faith, gross
negligence or reckless disregard by PFPC of its duties under this
Agreement.
11. Compliance with Governmental Rules and
Regulations. PFPC undertakes to comply with all applicable
requirements of the 1933 Act, the 1934 Act, the 1940 Act, the
CEA, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be
performed by PFPC hereunder.
12. Compensation. As compensation for the services
rendered by PFPC during the term of this Agreement, the Fund will
pay to PFPC an annual fee calculated daily and payable monthly,
as may be agreed to in writing from time to time by the Fund and
PFPC.
13. 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
Securities Exchange Act of 1934, 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 attorneys'
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fees and disbursements (as long as such attorney has been
retained with the consent of the Fund, which consent shall not
unreasonably be withheld), arising directly or indirectly from
any action or thing which PFPC 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 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, bad faith, negligence or
reckless disregard of its duties and obligations under this
Agreement. In order that the indemnification provision contained
in this Paragraph 13 shall apply, it is understood that if in any
case the Fund may be asked to indemnify or save PFPC harmless,
the Fund shall be fully and promptly advised of all pertinent
facts concerning the situation in question, and it is further
understood that PFPC will use all reasonable care to identify and
notify the Fund promptly concerning any situation which presents
or appears likely to present the probability of such a claim for
indemnification against the Fund. The Fund shall have the option
to defend PFPC against any claim which may be subject to this
indemnification and, in the event that the Fund so elects, it
will so notify PFPC and thereupon the Fund shall take over
complete defense for the claim, and PFPC shall in such situation
incur no further legal or other expenses for which it shall seek
indemnification under this Paragraph 13. PFPC shall in no case
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confess any claim or make any compromise or settlement in any
case in which the Fund will be asked to indemnify PFPC, except
with the Fund's prior written consent.
14. 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. In the performance of its duties hereunder,
PFPC shall be obligated to exercise care and diligence and to act
in good faith and to use its best efforts within reasonable
limits in performing services provided for under this Agreement,
but PFPC shall not be responsible for any act or omission which
does not constitute willful misfeasance, bad faith or gross
negligence on the part of PFPC or reckless disregard by PFPC of
such duties under this Agreement. PFPC shall be responsible for
and shall hold the Fund harmless from all loss, cost, damage and
expense, including reasonable attorney fees (as long as such
attorney has been retained with the consent of PFPC, which shall
not be unreasonably withheld), incurred by it resulting from any
claim, demand, action or suit arising out of PFPC's own grossly
negligent failure to perform its duties under this Agreement. In
order that the indemnification provision contained in this
Paragraph 14 shall apply, it is understood that if in any case
PFPC may be asked to indemnify or save the Fund harmless, PFPC
shall be fully and promptly advised of all pertinent concerning
the situation in question, and it is further understood that the
Fund will use all reasonable care to identify and notify PFPC
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promptly concerning any situation which presents or appears
likely to present the probability of such a claim for
indemnification against PFPC. PFPC shall have the option to
defend the Fund against any claim which may be the subject of
this indemnification and, in the event that PFPC so elects, it
will so notify the Fund and thereupon PFPC shall take over
complete defense for the claim, and the Fund shall in such
situation incur no further legal or other expenses for which it
shall seek indemnification under this Paragraph 14. The Fund
shall in no case confess any claim or make any compromise or
settlement in any case in which PFPC will be asked to indemnify
the Fund except with PFPC's prior written consent.
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 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, 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, mechanical breakdown (except as provided in Paragraph 9),
flood or catastrophe, acts of God, insurrection, war, riots or
failure of the mails, transportation, communication or power
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supply. PFPC expressly disclaims all responsibility for
consequential damages, including but not limited to any that may
result from the performance or non-performance of any duty or
obligation whether express or implied in this Agreement, and also
expressly disclaims any express or implied warranty of products
or services provided in connection with this Agreement.
15. Duration and Termination. This Agreement shall
continue until terminated by the Fund or PFPC on 60 days written
notice.
16. 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 PFPC at
PFPC's address, Bedford Building, 0000 Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000; (b) if to the Fund, at Xxxxxx Xxxxxxx
Asset Management, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx, 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. 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 mailed, in which case it shall be deemed to have been given
three 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
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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 two 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 and
facsimile sending device it shall be deemed to have been given
immediately. All postage, cable, telex, or facsimile sending
device charges arising from the sending of a Notice hereunder
shall be paid by the sender.
17. Further Actions. Each party agrees to perform
such further acts and execute such further documents as are
necessary to effectuate the purposes hereof.
18. 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.
19. Delegation. On thirty (30) days prior written
notice to the Fund, 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) the delegate agrees with PFPC to comply with
all relevant provisions of the 1940 Act; and (ii) PFPC and such
delegate shall promptly provide such information as the Fund may
request, and respond to such questions as the Fund may ask,
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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 once and the
same instrument.
21. Miscellaneous. This Agreement embodies the entire
agreement and understanding between the parties thereto, 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 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.
{SEAL} PCS CASH FUND, INC.
Attest: /s/Xxxxxxx X. XxXxxxx By: /s/ Xxxxxx X. Xxxxx
Xxxxxxx X. XxXxxxx Xxxxxx X. Xxxxx
{SEAL} PROVIDENT FINANCIAL
PROCESSING CORPORATION
Attest: By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
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INDEX
Paragraph Page
1. Appointment . . . . . . . . . . . . . . . . . . . . . . 1
2. Delivery of Documents . . . . . . . . . . . . . . . . . 2
3. Definitions . . . . . . . . . . . . . . . . . . . . . . 4
4. Instructions Consistent with Charter, etc. . . . . . . . 5
5. Services on a Continuing Basis . . . . . . . . . . . . . 6
6. Records . . . . . . . . . . . . . . . . . . . . . . . . 10
7. Liaison With Accountants . . . . . . . . . . . . . . . . 11
8. Confidentiality . . . . . . . . . . . . . . . . . . . . 11
9. Equipment Failures . . . . . . . . . . . . . . . . . . . 11
10. Right to Receive Advice . . . . . . . . . . . . . . . . 12
11. Compliance with Governmental Rules and Regulations . . . 13
12. Compensation . . . . . . . . . . . . . . . . . . . . . . 13
13. Indemnification . . . . . . . . . . . . . . . . . . . . 13
14. Responsibility of PFPC . . . . . . . . . . . . . . . . . 15
15. Duration and Termination . . . . . . . . . . . . . . . . 17
16. Notices . . . . . . . . . . . . . . . . . . . . . . . . 17
17. Further Actions . . . . . . . . . . . . . . . . . . . . 18
18. Amendments . . . . . . . . . . . . . . . . . . . . . . . 18
19. Delegation . . . . . . . . . . . . . . . . . . . . . . . 18
20. Counterparts . . . . . . . . . . . . . . . . . . . . . . 19
21. Miscellaneous . . . . . . . . . . . . . . . . . . . . . 19
