Exhibit (h)(84)
ESCROW AGREEMENT
This ESCROW AGREEMENT (the "Agreement"), is effective as of
September 29, 2006, by and among The RBB Fund, Inc. (the "Company"), with
respect to the Company's Money Market Portfolio (the "Portfolio"); BlackRock
Institutional Management Corporation ("BIMC"); and PFPC Trust Company ("Escrow
Agent").
BACKGROUND
Pursuant to an Interim Investment Advisory and Administration
Agreement, dated as of September 29, 2006, by and between the Company and BIMC
(the "Interim Agreement"), BIMC has agreed to provide certain investment
advisory services to the Company with respect to the Portfolio. Pursuant to
Section 13 of the Interim Agreement, the compensation payable to BIMC by the
Company is required to be deposited into escrow. The Company, BIMC and Escrow
Agent now wish to enter into this Agreement providing for the appointment by the
Company and BIMC of Escrow Agent to hold such escrowed funds and to set forth
the terms and conditions under which such funds held in escrow shall be
disbursed.
NOW THEREFORE, in consideration of the premises and mutual
covenants herein contained, and intending to be legally bound, the parties
hereto agree as follows:
1. APPOINTMENT OF ESCROW AGENT. The Company and BIMC hereby
appoint Escrow Agent as the escrow agent under this Agreement and Escrow Agent
hereby accepts such appointment and agrees to hold all of the funds deposited
into escrow with it and investments purchased with such funds, together with all
interest and income thereon and other proceeds thereof, including proceeds of
the sale or maturity of investments constituting any of the assets held by
Escrow Agent hereunder (collectively, the "Escrow Money"), and to perform its
other duties hereunder in accordance with the terms hereof.
2. ESTABLISHMENT OF ESCROW. The Company shall deposit with
Escrow Agent as Escrow Money the monthly advisory fees payable to BIMC by the
Company for services provided and expenses assumed pursuant to the Interim
Agreement. The Company shall deposit such advisory fees with the Escrow Agent by
wire transfer. Escrow Agent shall have no obligation to require any Escrow Money
to be deposited with it. Escrow Agent shall hold the Escrow Money in a
segregated account on behalf of the Portfolio as agent pursuant to this
Agreement, and shall disburse the Escrow Money pursuant to the terms of this
Agreement.
3. INVESTMENT OF ESCROW MONEY. Until all of the Escrow Money
shall have been disbursed as provided in this Agreement, the same shall be
invested in a money market mutual fund or interest bearing time deposits as from
time to time the Company directs in writing. The Escrow Agent and/or its
affiliates may receive fees from such investment. All income earned on and other
proceeds of the Escrow Money
Exhibit (h)(84)
shall be added to the amount thereof and distributed in accordance with the
terms hereof. Such income shall be treated as income of BIMC for income tax
purposes; Escrow Agent shall have no filing, reporting or other obligations with
respect thereto. If so directed in writing by the Company, Escrow Agent shall
settle the sale of such specific investments comprising all or a portion of the
Escrow Money as the Company shall direct in writing. Escrow Agent shall promptly
provide the Company and BIMC with a monthly statement of the assets comprising
the Escrow Money at the end of such month and of all debits and credits relating
to the Escrow Money during such month.
4. DISPOSITION OF ESCROW MONEY. Escrow Agent shall disburse
the Escrow Money only pursuant to the mutual written directions of the Company
and BIMC.
5. RESIGNATION OR REMOVAL OF ESCROW AGENT. Escrow Agent may
resign at any time upon 30 days' prior written notice to the Company and BIMC,
and may be removed by the mutual consent of the Company and BIMC upon 30 days'
prior written notice to Escrow Agent. Prior to the effective date of the
resignation or removal of Escrow Agent or any successor escrow agent, the
Company shall appoint a successor escrow agent to hold the Escrow Money, and any
such successor escrow agent shall execute and deliver to the predecessor escrow
agent an instrument accepting such appointment, upon which delivery such
successor agent shall, without further act, become vested with all of the
rights, powers and duties of the predecessor escrow agent as if originally named
herein.
6. LIABILITY OF ESCROW AGENT.
(a) The duties of Escrow Agent hereunder are only as
specifically set forth herein and are entirely administrative and not
discretionary. Escrow Agent is obligated to act only in accordance with written
instructions received by it as provided in this Agreement, is authorized hereby
to comply with any orders, judgments or decrees of any court or arbitration
panel and shall not incur any liability as a result of its compliance with such
instructions, orders, judgments or decrees. Escrow Agent may assume the due
execution, validity and effectiveness of, and the truth and accuracy of any
information contained in, any instruction or any instrument or other document
presented to it which Escrow Agent shall in good faith believe to be genuine,
and to have been signed or presented by the persons or parties purporting to
sign or present the same.
(b) Escrow Agent shall have no liability under, or duty to
inquire into, the terms or provisions of any other agreement or arrangement
between or requirement applicable to any of the other parties hereto. In the
event that any of the terms or provisions of any other agreement, arrangement or
requirement conflict or are inconsistent with any of the terms and provisions of
this Agreement, the terms and provisions of this Agreement in respect of Escrow
Agent's rights and duties shall govern and control in all respects.
(c) If Escrow Agent shall be uncertain as to its duties or
rights hereunder, it shall be entitled to refrain from taking any action other
than to keep safely all property held in escrow pursuant hereto until it shall
be directed otherwise in a writing signed by the Company and BIMC, or by an
order of a court of competent jurisdiction. Escrow Agent may consult with
counsel of its choice, including in-house counsel, and
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Exhibit (h)(84)
shall not be liable for any action taken, suffered, or omitted by it in
accordance with the written advice of such counsel. Escrow Agent (i) shall not
be required to institute legal proceedings of any kind and (ii) shall not be
required to defend any legal proceedings which may be instituted in respect of
the subject matter of this Agreement unless requested to do so by another party
hereto and indemnified to its reasonable satisfaction against the costs and
expenses of such defense.
(d) The Company and BIMC hereby waive any suit, claim,
demand or cause of action of any kind which either one or both may have to
assert against Escrow Agent arising out of or relating to the execution or
performance by Escrow Agent of this Agreement, unless such suit, claim, demand
or cause of action is the result of the willful misconduct, gross negligence or
bad faith of Escrow Agent in performing an express obligation hereunder. In no
event shall Escrow Agent have any responsibility with respect to any investment
losses relating to the Escrow Money. Escrow Agent shall be indemnified and held
harmless against any and all liabilities, including judgments, costs and
reasonable counsel fees, for anything done or omitted by Escrow Agent in the
performance of this Agreement except as a result of the willful misconduct,
gross negligence or bad faith of Escrow Agent in performing an express
obligation hereunder. All such reimbursements and indemnifications shall be paid
by BIMC. Escrow Agent's right to such reimbursements and indemnifications shall
survive its resignation or removal and/or termination of this Agreement.
(e) Notwithstanding anything in this Agreement to the
contrary, the Escrow Agent shall not have any liability for any indirect,
special or consequential damages, regardless of whether the Escrow Agent was
aware of the possibility thereof. Notwithstanding anything in this Agreement to
the contrary, Escrow Agent shall not have any liability for any failure, delays
or damages occurring by reason of circumstances beyond its reasonable control.
7. FEES AND OUT-OF-POCKET EXPENSES OF ESCROW AGENT. Escrow
Agent's fees and out-of-pocket expenses shall be paid by BIMC and shall be paid
promptly upon receipt of an invoice from Escrow Agent. Escrow Agent's fees shall
be as set forth on Schedule A hereto.
8. NOTICES. All notices or other communications permitted or
required under this Agreement shall be in writing and shall be sufficiently
given if and when hand delivered to the persons set forth below or if sent by
documented overnight delivery service or registered or certified mail, postage
prepaid, return receipt requested, or by telecopy, receipt acknowledged,
addressed as set forth below or to such other person or persons and/or at such
other address or addresses as shall be furnished in writing by any party hereto
to the others. Any such notice or communication shall be deemed to have been
given as of the date received, in the case of personal delivery, or on the date
shown on the receipt or confirmation therefor in all other cases.
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Exhibit (h)(84)
TO COMPANY:
-----------
The RBB Fund, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
With copies to:
Xxxxxxx X. Xxxxxx, Esq.
Drinker Xxxxxx & Xxxxx, LLP
One Xxxxx Square
00xx & Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
TO BIMC:
--------
BlackRock Institutional Management Corporation
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Fax: (000) 000-0000
TO ESCROW AGENT:
----------------
PFPC Trust Company
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Fax: (000) 000-0000
9. ENTIRE AGREEMENT AND MODIFICATION. This Agreement
constitutes the entire agreement among the parties hereto with respect to the
matters contemplated herein and supersedes all prior agreements and
understandings with respect thereto. Any amendment, modification or waiver of
this Agreement shall not be effective unless agreed among the parties hereto in
writing. Neither the failure nor any delay on the part of any party to exercise
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same nor shall the
exercise of any right, remedy, power or privilege with respect to any occurrence
be construed as a waiver of any right, remedy, power or privilege with respect
to any other occurrence. This Agreement shall automatically terminate upon
disbursement of all the Escrow Money maintained hereunder.
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Exhibit (h)(84)
10. GOVERNING LAW. This Agreement is made pursuant to, and
shall be construed and enforced in accordance with, the internal laws of the
State of Delaware, without giving effect to otherwise applicable principles of
conflicts of law.
11. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original and all of
which, when taken together, shall be deemed to constitute but one and the same
Agreement.
12. BINDING EFFECT. Except as contemplated by Section 5
hereof, no party may assign its rights or delegate its obligations under this
Agreement without the prior written consent of the other parties hereto
(provided that Escrow Agent may utilize a sub-custodian in connection with its
services under this Agreement and provided further that Escrow Agent shall be
responsible for the acts and omissions of such sub-custodian to the same extent
that Escrow Agent is responsible for its own acts and omissions under this
Agreement). Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors, assigns, heirs, executors and administrators. If any provision of
this Agreement shall be or become illegal or unenforceable in whole or in part
for any reason whatsoever, the remaining provisions shall nevertheless be deemed
valid, binding and subsisting.
IN WITNESS WHEREOF, this Agreement has been executed as of the
date and year first-above written.
THE RBB FUND, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
BLACKROCK INSTITUTIONAL
MANAGEMENT CORPORATION
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title:
PFPC TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Director
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Exhibit (h)(84)
SCHEDULE A
Fees of Escrow Agent
Fee for each segregated account upon $100 per month; first two
its establishment in accordance with monthly payments are waived
Section 2 of the Agreement (each, a
"segregated account")
Out of pocket expenses As incurred by Escrow Agent
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