Exhibit (5)(x)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this ___ day of ____________, _____ by and
between BNY Xxxxxxxx High Yield Fund (the "Series"), a series of BNY Xxxxxxxx
Funds, Inc., a Maryland corporation (the "Corporation") and The Bank of New
York, a New York bank (the "Adviser").
1. Duties of Adviser. The Series hereby appoints the Adviser
to act as investment adviser to the Series for the period and on such terms as
are set forth in this Agreement. The Series employs the Adviser to manage the
investment and reinvestment of the assets of the Series, to continuously review,
supervise and administer the investment program of the Series, to determine in
its discretion the securities to be purchased or sold and the portion of the
Series' assets to be held uninvested, to provide the Corporation with records
concerning the Adviser's activities which the Corporation is required to
maintain, and to render regular reports to the Corporation's officers and Board
of Directors concerning the Adviser's discharge of the foregoing
responsibilities. The Advisor shall discharge the foregoing responsibilities
subject to the control of the officers and the Board of Directors of the
Corporation, and in compliance with the objectives, policies and limitations set
forth in the Corporation's Registration Statement (No. 811-6654), including the
Series' prospectus and statement of additional information, applicable laws and
regulations. The Adviser accepts such employment and agrees to render the
services and to provide, at its own expense, the office space, furnishings and
equipment and the personnel required by it to perform the services on the terms
and for the compensation provided therein.
2. Portfolio Transactions. The Adviser is authorized to select
the brokers or dealers that will execute the purchases and sales of securities
for the Series and is directed to use its best efforts to obtain the best
available price and most favorable execution, except as prescribed herein.
Unless and until otherwise directed by the Board of Directors of the
Corporation, the Adviser may also
effect individual securities transactions at commission rates in excess of
the minimum commission rates available, if the Adviser determines in good faith
that such amount of commission is reasonable in relation to the value of the
brokerage or research services provided by such broker or dealer, viewed in
terms of either that particular transaction or the Adviser's overall
responsibilities with respect to the Corporation. The execution of such
transactions shall not be deemed to represent an unlawful act or breach of any
duty created by this Agreement or otherwise. The Adviser will promptly
communicate to the officers and Directors of the Corporation such information
relating to Series transactions as they may reasonably request.
3. Compensation of the Adviser. For the services to be
rendered by the Adviser as provided in Section 1 of this Agreement, the
Corporation shall pay to the Adviser at the end of each month an advisory fee
accrued daily and payable monthly based on an annual percentage rate of 0.___%
of the Series' average daily net assets.
In the event of termination of this Agreement, the fee
provided in this Section shall be computed on the basis of the period ending on
the last business day on which this Agreement is in effect, subject to a pro
rata adjustment based on the number of days elapsed in the month as a percentage
of the total number of days in such month.
4. Reports. The Series and the Adviser agree to furnish to
each other current prospectuses, proxy statements, reports to shareholders,
certified copies of their financial statements, and such other information with
regard to their affairs as each may reasonably request.
5. Status of Adviser. The services of the Adviser to the
Series are not to be deemed exclusive, and the Adviser shall be free to render
similar services to others.
6. Liability of Adviser. In the absence of (i) wilful
misfeasance, bad faith or gross negligence on the part of the Adviser in
performance of its obligations and duties hereunder, (ii) reckless disregard by
the Adviser of its obligations and duties hereunder, or (iii) a loss resulting
from a breach of fiduciary duty with respect to the receipt of compensation for
services (in which case any
award of damages shall be limited to the period and the amount set forth in
Section 36(b)(3) of the Investment Company Act of 1940 ("1940 Act"), the Adviser
shall not be subject to any liability whatsoever to the Series, or to any
shareholder of the Series, for any error of judgment, mistake of law or any
other act or omission in the course of, or connected with, rendering services
hereunder including, without limitation, for any losses that may be sustained in
connection with the purchase, holding, redemption or sale of any security on
behalf of the Series.
7. Permissible Interests. Subject to and in accordance with
the Articles of Incorporation of the Corporation and applicable law and
regulation, Directors, officers, agents and shareholders of the Corporation are
or may be interested in the Adviser (or any successor thereof) as Directors,
officers, agents, shareholders or otherwise; Directors, officers, agents and
shareholders of the Adviser are or may be interested in the Corporation as
Directors, officers, shareholders or otherwise; and the Adviser (or any
successor) is or may be interested in the Corporation as a shareholder or
otherwise; and the effect of any such interrelationships shall be governed by
said Articles of Incorporation and the provisions of the 1940 Act.
8. Duration and Termination. This Agreement, unless sooner
terminated as provided herein, shall continue until the earlier of August 31,
2004 or the date of the first annual or special meeting of the shareholders of
the Series, and thereafter shall continue for periods of one year so long as
such continuance is specifically approved at least annually (a) by the vote of a
majority of those members of the Board of Directors of the Corporation who are
not parties to this Agreement or interested persons of any such party, cast in
person at a meeting called for the purpose of voting on such approval, and (b)
by the Board of Directors of the Corporation or by vote of a majority of the
outstanding voting securities of the Series. This Agreement may be terminated by
the Series at any time, without the payment of any penalty, by vote of a
majority of the entire Board of Directors of the Corporation or by vote of a
majority of the outstanding voting securities of the Series on 60 days' written
notice to the Adviser. This Agreement may be terminated by the Adviser at any
time, without
the payment of any penalty, upon 60 days' written notice to the Series. This
Agreement will automatically and immediately terminate in the event of its
assignment. Any notice under this Agreement shall be given in writing, addressed
and delivered or mailed postpaid, to the other party at any office of such party
and shall be deemed given when received by the addressee.
As used in this Section 9, the terms "assignment", "interested
persons", and "a vote of a majority of the outstanding voting securities" shall
have the respective meanings set forth in Section 2(a)(4), Section 2(a)(19) and
Section 2(a)(42) of the 1940 Act.
9. Amendment of Agreement. This Agreement may be amended by
mutual consent, but the consent of the Series must be approved (a) by vote of
majority of those members of the Board of Directors of the Corporation who are
not parties to this Agreement or interested persons of any such party, cast in
person at a meeting called for the purpose of voting on such amendment, and (b)
by vote of a majority of the outstanding voting securities of the Series.
10. Use of Name. The Series agrees that if this Agreement is
terminated and the Adviser shall no longer be the adviser to the Series, the
Series will, within a reasonable period of time, change its name to delete
reference to "BNY Xxxxxxxx".
11. Severability. If any provisions 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.
12. Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of New York, provided, however, that
nothing herein shall be construed as being inconsistent with the 1940 Act.
13. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their officers thereunto duly authorized as of the day and year
first written above.
XXX XXXX XX XXX XXXX XXX XXXXXXXX FUNDS, INC.
For HIGH YIELD FUND
By By
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Name: Name:
Title: Title:
