FUND ACCOUNTING AGREEMENT
AGREEMENT made as of this 27th day of July, 1992 by and between BNY
Xxxxxxxx Funds, Inc., a Maryland Corporation having its principal place of
business at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx (hereinafter
called the "Corporation") and The Bank of New York, a New York corporation
authorized to do banking business, having its principal place of business at 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called the "Bank").
W I T N E S E T H:
WHEREAS, the Corporation is registered under the Investment Company Act
of 1940, as amended, as a diversified, open-end, management investment company;
WHEREAS, the Corporation consists xx XXX Xxxxxxxx Xxxxx Xxxx, XXX
Xxxxxxxx Intermediate Government Bond Fund, BNY Xxxxxxxx Intermediate New York
Tax Exempt Fund and BNY Xxxxxxxx Equity Income Fund, and such other series as
may be added from time, (each a "Series", and collectively, the "Series");
WHEREAS, the Corporation desires to retain the Bank to provide fund
accounting services for the Series and the Bank is willing to provide such
services, all as more fully set forth below;
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
1. The Corporation appoints the Bank as its agent to perform the duties
hereinafter set forth.
2. The Bank hereby accepts appointment as such agent and agrees to
perform the duties hereinafter set forth.
3. The Bank shall compute the net asset value per share of each Series
at such times and dates and in the manner specified in the then currently
effective Registration Statement of the Corporation. Securities of the
Corporation shall be valued as set forth in the then currently effective
Registration Statement of the Corporation and the Corporation shall have sole
responsibility for determining the method of valuation of Corporation
securities. To the extent valuation of Corporation securities on such basis is
at any time inconsistent with any applicable laws and/or regulations, the
Corporation shall immediately so notify the Bank in writing and thereafter shall
either furnish the Bank at all
appropriate times with the value of the Corporation's securities or, subject to
the prior approval of the Bank, instruct the Bank in writing to value
Corporation securities in a manner which the Corporation then represents in
writing to be consistent with all applicable laws and regulations.
4. The Bank shall also compute the net income of each Series for
dividend purposes and the net income and or dividend rate per share at such
times and dates, if specified, and in the manner so specified in the then
currently effective Registration Statement of the Corporation.
5. The Corporation may from time to time instruct the Bank in writing
to compute the value of the securities of a Series, a Series' net asset value
per share, the net income of a Series, or the net income per share of a Series
in a manner other than as specified in paragraphs 3 and 4 of this Agreement;
provided, however, that any such other methods of computation shall not be
inconsistent with any applicable laws and regulations.
6. The Corporation shall furnish the Bank with any and all
instructions, explanations, information, specifications and documentation deemed
necessary by the Bank in the performance of its duties hereunder, including,
without limitation, the amounts, and/or written formula for calculating the
amounts, and times of accrual of Corporation liabilities and expenses. The
Corporation shall also agree that at any time and from time to time it shall
furnish the Bank with bid, offer, and/or market values of Corporation securities
if the same are not available to the Bank from a security pricing or similar
service utilized, or subscribed to, by the Bank at the time such information is
required for calculations hereunder. The Bank shall at no time be required or
obligated to commence or maintain any utilization of, or subscriptions to, any
securities pricing or similar service. Any specifications of the assets of the
Corporation given to the Bank by the Corporation, and any changes in such
specifications, including, without limitation, any additions thereto or
deletions therefrom, shall be signed by two (2) officers of the Corporation.
7. The Bank shall advise the Corporation, the Corporation's custodian
and the Corporation's transfer agent of the net asset value per share, the net
income and the net income and or dividend rate per share of each Series upon
completion of the computations required to be made by the Bank pursuant to this
Agreement.
8. The Bank shall, as agent for the Corporation, maintain and keep
current the books, accounts and other documents with respect to each Series, if
any, listed in
[Appendix A] hereto and made a part hereof, as such Appendix A may be amended
from time to time, and preserve any such books, accounts and other documents in
accordance with the applicable provisions of Rule 31a-2 of the General Rules and
Regulations under the Investment Company Act of 1940, as amended (the "Rules).
Such books, accounts and other documents shall be made available upon reasonable
request for inspection by officers, employees, auditors, and other agents of the
Corporation during the Bank's normal business hours.
9. All records maintained and preserved by the Bank pursuant to this
Agreement that the Corporation is required to maintain and preserve in
accordance with the above-mentioned Rules shall be and remain the property of
the Corporation and shall be surrendered to the Corporation promptly upon
request in the form in which such records have been maintained and preserved.
Upon reasonable request of the Corporation, the Bank shall provide in hard copy
or on micro-film, whichever the Bank shall elect, any records included in any
such delivery that are maintained by the Bank on a computer disc, or are
similarly maintained, and the Corporation shall reimburse the Bank for the
expense of providing such hard copy or micro-film.
10. The Bank, in performing the services required of it under the terms
of this Agreement, shall be entitled to rely fully on the accuracy and validity
of any and all instructions, explanations, information, specifications and
documentation furnished to it by the Corporation and shall have no duty or
obligation to review the accuracy, validity or propriety of such instructions,
explanations, information, specifications or documentation, including, without
limitation, evaluations of securities held as part of the portfolios of the
Series; the amounts and/or formula for calculating the amounts and times of
accrual of Series' liabilities and expenses; the amount receivable and the
amounts payable on the sale or purchase of the portfolio securities of the
Corporation; and amounts receivable or amounts payable for the sale or
redemption of Corporation shares effected by or on behalf of the Corporation. In
the event the Bank's computations hereunder require, in whole or in part,
information, including without limitation, bid offer and/or market values of
securities or other assets, or accruals of interest or earnings thereon, which
is not furnished by the Corporation because the same is available to the Bank
from a pricing or similar service utilized, or subscribed to, by the Bank which
the Bank in its judgment deems reliable, the Bank shall not be responsible for,
under any duty to neither inquire into, nor deemed to make any assurances with
respect to, the accuracy or completeness of such information.
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11. The Bank shall not be required to inquire into any valuation of
securities or other assets by the Corporation or any third party described in
preceding paragraph 10 hereof, even though the Bank in performing services
similar to the services provided pursuant to this Agreement for others may
receive different valuations of the same or different securities of the same
issuers.
12. The Bank, in performing the services required of it under the terms
of this Agreement, shall not be responsible for determining whether any interest
accruable to the Corporation is or will be actually paid, but will accrue such
interest until otherwise instructed by the Corporation.
13. The Bank shall not be responsible for reasonable delays or errors
that occur by reason of circumstances beyond its control in the performance of
its duties under this Agreement, including, without limitation, labor
difficulties within and without the Bank, mechanical breakdowns, flood or
catastrophe, acts of God, or failures of transportation, communication or power
supply, or other similar circumstances. Nor shall the Bank be responsible for
delays or failures to supply the information or services specified in this
Agreement where such delays or failures are caused by the failure of any
person(s) other than the Bank to supply any instructions, explanations,
information, specifications or documentation deemed necessary by the Bank in the
performance of its duties under this Agreement.
14. No provision of this Agreement shall prevent the Bank from offering
services similar or identical to those covered by this Agreement to any other
corporations, associations or entities of any kind. Any and all operational
procedures, techniques and devices developed by the Bank in connection with the
performance of its duties and obligations under this Agreement, including those
developed in conjunction with the Corporation, shall be and remain the property
of the Bank, and the Bank shall be free to employ such procedures, techniques
and devices in connection with the performance of any other contract with any
other person whether or not such contract is similar or identical to this
Agreement.
15. The Bank may, with respect to questions of law, apply to and obtain
the advice and opinion of counsel to the Corporation at the Corporation's
expense or its own counsel at its own expense and shall be entitled to rely on
the advice or opinion of such counsel.
16. The Bank shall not be liable for any loss, damage or expense,
including counsel fees and other costs and expenses of a defense against any
claim or liability, result-
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ing from, arising out of, or in connection with its performance hereunder,
including its actions or omissions, the incompleteness or inaccuracy of any
specifications or other information furnished by the Corporation, or for delays
caused by circumstances beyond the Bank's control, unless such loss, damage or
expense arises out of the bad faith, negligence, or willful misconduct of the
Bank, or reckless disregard of its duties under this Agreement.
17. Without limiting the generality of the foregoing, the Corporation
shall indemnify the Bank against and save the Bank harmless from any loss,
damage or expense, including counsel fees and other costs and expenses of a
defense against any claim or liability, arising from the following:
(a) Errors in records or instructions, explanations,
information, specifications or documentation of any kind, as the case may be,
supplied to the Bank by any third party described in preceding paragraph 10
hereof or by or on behalf of the Corporation;
(b) Action or inaction taken or omitted to be taken by the
Bank without bad faith, negligence, willful misconduct or reckless disregard of
its duties, or in good faith pursuant to written instructions of an officer or
employee of the Corporation; and
(c) Any action taken or omitted to be taken by the Bank in
good faith in accordance with the advice or opinion of counsel for the
Corporation or its own counsel.
18. [In consideration for all of the services to be performed by the
Bank as set forth herein, the Bank shall be entitled to receive reimbursement
for all out-of-pocket expenses; including, without limitation, the fees of
pricing or similar services, and such compensation as may be agreed upon in
writing from time to time between the Bank and the Corporation.]
19. This Agreement shall not be assignable by the Corporation without
the prior written consent of the Bank, or by the Bank without the prior written
consent of the Corporation.
20. Either of the parties hereto may terminate this Agreement by giving
the other party a notice in writing specifying the date of such termination,
which shall not be less than ninety (90) days after the date of giving of such
notice. Upon the date set forth in such notice, the Bank shall deliver to the
Corporation all records then the property of the Corpor-
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ation and, upon such delivery, the Bank shall be relieved of all duties and
responsibilities under this Agreement.
21. This Agreement may not be amended or modified in any manner except
by written agreement executed on behalf of both parties hereto.
22. This Agreement is executed in the State of New York and all laws or
rules of construction of the State of New York shall govern the rights, duties
and obligations of the parties hereto.
23. The performance and provisions of this Agreement are intended to
benefit only the Bank and the Corporation, and no rights shall be granted to any
other person by virtue of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
BNY XXXXXXXX FUNDS, INC.
By: /s/
-----------------------
Name:
Title: President
Attest:
/s/
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THE BANK OF NEW YORK
By: /s/
-----------------------
Name:
Title: VP
Attest:
/s/
-----------------------
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