Exhibit (9)(ll)
ADMINISTRATION AGREEMENT
AGREEMENT made as of June 30, 2005, by and between BNY Xxxxxxxx Funds, Inc.
("Xxxxxxxx"), a corporation organized under the laws of Maryland, with regard to
the portfolios listed on Exhibit A hereto (each a "Fund", collectively the
"Funds"), and The Bank of New York, a New York banking organization (the
"Administrator").
WITNESSETH:
WHEREAS, Xxxxxxxx is an investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, Xxxxxxxx desires to retain the Administrator to provide
administration services for the Fund and the Administrator 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. Appointment.
Xxxxxxxx hereby appoints the Administrator as its agent for the term of
this Agreement to perform the services described herein. The Administrator
hereby accepts such appointment and agrees to perform the duties hereinafter set
forth.
2. Representations and Warranties.
Xxxxxxxx and the Administrator hereby each represents and warrants to the
other, which representations and warranties shall be deemed to be continuing,
that:
(a) It is duly organized and existing under the laws of the jurisdiction of
its organization, with full power to carry on its business as now conducted, to
enter into this Agreement and to perform its obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered in
accordance with all requisite action and constitutes a valid and legally binding
obligation, enforceable in accordance with its terms; and
(c) It is conducting its business in compliance with all applicable laws
and regulations, both state and federal, and has obtained all regulatory
licenses, approvals and consents necessary to carry on its business as now
conducted; there is no statute, regulation, rule, order or judgment binding on
it and no provision of its charter or by-laws, nor of any mortgage, indenture,
credit agreement or other contract binding on it or affecting its property which
would prohibit its execution or performance of this Agreement.
-2-
3. Duties and Obligations of the Administrator.
(a) Subject to the general direction and control of Xxxxxxxx'x Board and
the provisions of this Agreement, the Administrator shall provide to each Fund
all administrative services necessary for the operation of such Fund, including
without limitation those services set forth on Schedule I attached hereto.
(b) In performing hereunder, the Administrator shall provide, at its
expense, office space, facilities, equipment and personnel.
(c) The Administrator shall not provide under this Agreement any services
relating to the investment advisory or sub-advisory functions of any Fund,
distribution of shares of any Fund, or services normally performed by the Funds'
respective counsel or independent auditors.
(d) Upon receipt of a Fund's prior written consent (which shall not be
unreasonably withheld), the Administrator may delegate any of its duties and
obligations hereunder to any delegee or agent whenever and on such terms and
conditions as it deems necessary or appropriate. It is understood that the
Administrator and BISYS Fund Services Ohio, Inc. (the "Subadministrator") will
enter into the Sub-Administration Agreement attached as Exhibit B.
Notwithstanding the foregoing, no Fund consent shall be required for any such
delegation to any other subsidiary of The Bank of New York Company, Inc. The
Administrator shall not be liable to any Fund for any loss or damage arising out
of, or in connection with, the actions or omissions to act of any delegee or
agent utilized hereunder so long as the Administrator acts in good faith and
without negligence or willful misconduct in the selection and supervision of
such delegee or agent.
(e) Xxxxxxxx shall cause its officers, advisors, distributor, legal
counsel, independent accountants, transfer agent, and any other service provider
to cooperate with the Administrator and to provide the Administrator, upon its
reasonable request, with such information, documents and advice relating to such
Fund as is within the possession or knowledge of such persons, and which in the
opinion of the Administrator, is necessary in order to enable it to perform its
duties hereunder. The Administrator shall not be responsible for, under any duty
to inquire into, or be deemed to make any assurances with respect to the
accuracy, validity or propriety of any information, documents or advice provided
to the Administrator by any of the aforementioned persons which are not
affiliated persons (as defined in the 0000 Xxx) of the Administrator or any
Subadministrator ("Affiliated Persons"). The Administrator shall not be liable
for any loss, damage or expense resulting from or arising out of the failure of
the Fund to cause any information, documents or advice to be provided to the
Administrator as provided herein and shall be held harmless by each Fund when
acting in reliance upon such information, documents or advice relating to such
Fund. In the event that any services performed by the Administrator hereunder
rely, in whole or in part, upon information obtained from a service provider
which is not an Affiliated Person utilized or subscribed to by the Administrator
which the Administrator in its reasonable judgment deems reliable, the
Administrator shall not have any responsibility or liability for, under any duty
to inquire into, or deemed to make any assurances with respect to, the accuracy
or completeness of such information.
(f) Nothing in this Agreement shall limit or restrict the Administrator,
any affiliate of the Administrator or any officer or employee thereof from
acting as administrator for or with any third parties.
-3-
(g) The Administrator may consult with counsel to the appropriate Fund, at
such Fund's expense, and shall be fully protected with respect to anything done
or omitted by it in good faith in accordance with the advice or opinion of such
counsel.
(h) The Administrator may apply in writing to an officer or duly authorized
agent of any Fund (with a copy to the Fund's Chief Compliance Officer) for
written instructions with respect to any matter arising in connection with the
Administrator's performance hereunder for such Fund, and the Administrator shall
not be liable for any action taken or omitted to be taken by it in good faith in
accordance with such instructions.
4. Allocation of Expenses.
Except as otherwise provided herein, all costs and expenses arising or
incurred in connection with the performance of this Agreement shall be paid by
the appropriate Fund, including but not limited to, organizational costs and
costs of maintaining corporate existence, taxes, interest, brokerage fees and
commissions, insurance premiums, compensation and expenses of such Fund's
trustees, directors, officers or employees, legal, accounting and audit
expenses, advisory, sub-advisory, administration and shareholder servicing fees,
charges of custodians, transfer and dividend disbursing agents, expenses
(including clerical expenses) incident to the issuance, redemption or repurchase
of Fund shares, fees and expenses incident to the registration or qualification
under federal or state securities laws of the Fund or its shares, costs
(including printing and mailing costs) of preparing and distributing
Prospectuses, reports, notices and proxy material to such Fund's shareholders,
all expenses incidental to holding meetings of such Fund's trustees, directors
and shareholders, and extraordinary expenses as may arise, including litigation
affecting such Fund and legal obligations relating thereto for which the Fund
may have to indemnify its trustees, directors and officers.
5. Standard of Care; Indemnification.
(a) Except as otherwise provided herein, the Administrator shall not be
liable for any costs, expenses, damages, liabilities or claims (including
attorneys' and accountants' fees) incurred by a Fund, except those costs,
expenses, damages, liabilities or claims arising out of the Administrator's own
bad faith, negligence or willful misconduct. In no event shall the Administrator
be liable to any Fund or any third party for special, indirect or consequential
damages, or lost profits or loss of business, arising under or in connection
with this Agreement, even if previously informed of the possibility of such
damages and regardless of the form of action.
(b) Each Fund shall indemnify and hold harmless the Administrator from and
against any and all costs, expenses, damages, liabilities and claims (including
claims asserted by a Fund), and reasonable attorneys' and accountants' fees
relating thereto, which are sustained or incurred or which may be asserted
against the Administrator, by reason of or as a result of any action reasonably
taken or omitted to be taken by the Administrator in good faith hereunder or in
reliance upon (i) any law, act, regulation or interpretation of the same even
though the same may thereafter have been altered, changed, amended or repealed,
(ii) such Fund's Registration Statement or Prospectus, (iii) any instructions of
Xxxxxxxx'x Board, or (iv) any opinion of legal counsel for such Fund or the
Administrator or arising out of transactions or other activities of such Fund
which (x) occurred prior to the commencement of this Agreement and (y) are not
attributable to actions taken or omitted by the
-4-
Administrator or any Affiliated Person in whatever capacity theretofore acting;
provided, that no Fund shall indemnify the Administrator for costs, expenses,
damages, liabilities or claims arising out of the Administrator's own
negligence, bad faith or willful misconduct. This indemnity shall be a
continuing obligation of each Fund and its successors and assigns,
notwithstanding the termination of this Agreement.
(c) Actions taken or omitted in reliance on oral or written instructions,
or upon any information, order, indenture, stock certificate, power of attorney,
assignment, affidavit or other instrument believed by the Administrator to be
genuine or bearing the signature of a person or persons believed to be
authorized to sign, countersign or execute the same, or upon the opinion of
legal counsel for a Fund or its own counsel, shall be conclusively presumed to
have been taken or omitted in good faith.
6. Compensation.
For the services provided hereunder, Xxxxxxxx agrees that each Fund shall
pay the Administrator such compensation at the rate set forth opposite such
Fund's name on Exhibit A hereto and such out-of-pocket expenses (e.g.,
telecommunication charges, postage and delivery charges, record retention costs,
reproduction charges and transportation and lodging costs) as are incurred by
the Administrator in performing its duties hereunder. The rate set forth on
Exhibit A shall be an annual rate of such Fund's average daily net assets.
Except as hereinafter set forth, compensation shall be calculated and accrued
daily and paid monthly. Xxxxxxxx authorizes the Administrator to debit such
Fund's custody account for all amounts due and payable hereunder. The
Administrator shall deliver to each Fund invoices for services rendered after
debiting such Fund's custody account with an indication that payment has been
made. Upon termination of this Agreement before the end of any month, the
compensation for such part of a month shall be prorated according to the
proportion which such period bears to the full monthly period and shall be
payable upon the effective date of termination of this Agreement. For the
purpose of determining compensation payable to the Administrator, each Fund's
net asset value shall be computed at the times and in the manner specified in
the Fund's Prospectus.
7. Term of Agreement.
(a) This Agreement shall continue until terminated by either the
Administrator giving to a Fund, or a Fund giving to the Administrator, a notice
in writing specifying the date of such termination, which date shall be not less
than 90 days after the date of the giving of such notice. Upon termination
hereof, the affected Fund(s) shall pay to the Administrator such compensation as
may be due as of the date of such termination, and shall reimburse the
Administrator for any disbursements and expenses made or incurred by the
Administrator and payable or reimbursable hereunder.
8. Force Majeure.
Provided that a failure or delay in the performance of the Administrator's
obligations hereunder does not arise from the failure of the Administrator to
have in place such backup systems and disaster recovery programs as are required
by its regulators, the Administrator shall not be responsible or liable for any
such failure or delay in the performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
reasonable control, including without
-5-
limitation, acts of God; earthquakes; fires; floods; wars; civil or military
disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of
utilities, computer (hardware or software) or communications service; accidents;
labor disputes; acts of civil or military authority or governmental actions; it
being understood that the Administrator shall use its best efforts to resume
performance as soon as practicable under the circumstances.
9. Amendment.
This Agreement may not be amended or modified in any manner except by a
written agreement executed by the Administrator and Xxxxxxxx to be bound
thereby, and authorized or approved by Xxxxxxxx'x Board.
10. Assignment.
This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by any Fund without the written consent
of the Administrator, or by the Administrator without the written consent of
Xxxxxxxx accompanied by the authorization or approval of Xxxxxxxx'x Board.
11. Governing Law; Consent to Jurisdiction.
This Agreement shall be construed in accordance with the laws of the State
of New York, without regard to conflict of laws principles thereof. Each Fund
hereby consents to the jurisdiction of a state or federal court situated in New
York City, New York in connection with any dispute arising hereunder. Fund and
Administrator each hereby irrevocably waives any and all rights to trial by jury
in any legal proceeding arising out of or relating to this Agreement.
12. Severability.
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby, and if any provision is inapplicable to any
person or circumstances, it shall nevertheless remain applicable to all other
persons and circumstances.
13. No Waiver.
Each and every right granted to the Administrator hereunder or under any
other document delivered hereunder or in connection herewith, or allowed it by
law or equity, shall be cumulative and may be exercised from time to time. No
failure on the part of the Administrator to exercise, and no delay in
exercising, any right will operate as a waiver thereof, nor will any single or
partial exercise by the Administrator of any right preclude any other or future
exercise thereof or the exercise of any other right.
-6-
14. Notices.
All notices, requests, consents and other communications pursuant to this
Agreement in writing shall be sent as follows:
if to a Fund, at
BNY Xxxxxxxx Funds, Inc.
x/x Xxx Xxxx xx Xxx Xxxx
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxxx,
Executive Vice President
if to the Administrator, at
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxXxxx,
Managing Director
or at such other place as may from time to time be designated in writing.
Notices hereunder shall be effective upon receipt.
15. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original; but such counterparts together shall
constitute only one instrument.
16. Several Obligations.
The parties acknowledge that the obligations of the Funds hereunder are
several and not joint, that no Fund shall be liable for any amount owing by
another Fund and that the Funds have executed one instrument for convenience
only.
-7-
IN WITNESS WHEREOF, the parties hereto have caused the foregoing instrument
to be executed by their duly authorized officers and their seals to be hereunto
affixed, all as of the day and year first above written.
BNY XXXXXXXX FUNDS, INC.
By:
-------------------------------
Title:
THE BANK OF NEW YORK
By:
-------------------------------
Title:
SCHEDULE I
ADMINISTRATIVE SERVICES
1. Prepare minutes of Board of Director meetings and assist the Secretary of
the Funds in preparation for Board meetings. Such minutes, meeting agendas
and other material prepared in preparation for each Board meeting are
subject to the review of Fund counsel and counsel to the independent
directors of Xxxxxxxx.
2. Perform for each Fund, the compliance tests as mutually agreed and which
shall be specific to each Fund. The Compliance Summary Reports listing the
results of such tests are subject to review and approval by each Fund.
3. Participate in the periodic updating of each Fund's Registration Statement
and Prospectus and, subject to approval by such Fund's Treasurer and review
by legal counsel, coordinate the preparation, filing, printing and
dissemination of periodic reports and other information to the SEC and the
Fund's shareholders, including proxy statements, annual and semi-annual
reports to shareholders, Form N-SAR, Form N-CSR, Form N-Q and notices
pursuant to Rule 24f-2.
4. Prepare workpapers supporting the preparation of federal, state and local
income tax returns for each Fund for review and approval by each Fund's
independent auditors; perform ongoing wash sales review (i.e., purchases
and sales of Fund investments within 30 days of each other); and prepare
Form 1099s with respect to each Fund's directors or trustees and file such
forms upon the approval of the Fund's Treasurer.
5. Prepare and, subject to approval of the Funds' Treasurer, disseminate to
the Funds' Board quarterly unaudited financial statements and schedules of
the Funds' investments and make presentations to the Board, as appropriate.
6. Subject to approval of the Funds' Board, assist the Funds in obtaining
fidelity bond and E&O/D&O insurance coverage.
7. Prepare statistical reports for outside information services (e.g.,
IBC/Xxxxxxxx, ICI, Lipper Analytical and Morningstar).
8. Attend shareholder and Board meetings as requested from time to time.
9. Subject to review and approval by the Funds' Treasurer, establish
appropriate expense accruals, maintain expense files and coordinate the
payment of invoices for each Fund.
SCHEDULE I (continued)
ADMINISTRATIVE SERVICES
10. Provide an employee of the Administrator designated by Xxxxxxxx'x Board to
serve as Chief Compliance Officer of Xxxxxxxx together with all necessary
support staff, expenses and facilities.
EXHIBIT A
Name of Fund Annual Fee Rate
------------ ---------------
BNY Xxxxxxxx Enhanced Income Fund 0.07%
XXX Xxxxxxxx Xxxxx Xxxx
XXX Xxxxxxxx Xxx Xxxx Tax-Exempt Money Fund
BNY Xxxxxxxx Treasury Money Fund
BNY Xxxxxxxx High Yield Fund 0.10%
BNY Xxxxxxxx Intermediate Government Fund
BNY Xxxxxxxx Intermediate Investment Grade Fund
BNY Xxxxxxxx Intermediate New York Tax-Exempt Fund
BNY Xxxxxxxx Intermediate Tax-Exempt Fund
BNY Xxxxxxxx International Equity Fund
BNY Xxxxxxxx International Equity CRT Fund
BNY Xxxxxxxx Large Cap Equity Fund
BNY Xxxxxxxx Large Cap Growth Fund
BNY Xxxxxxxx Large Cap Growth CRT Fund
BNY Xxxxxxxx Large Cap Value Fund
BNY Xxxxxxxx Multi-Cap Equity Fund
BNY Xxxxxxxx S&P 000 Xxxxx Xxxx
XXX Xxxxxxxx Small Cap Core Equity Fund
BNY Xxxxxxxx Small Cap Growth Fund
BNY Xxxxxxxx Small Cap Growth CRT Fund
BNY Xxxxxxxx US Bond Market Index Fund
In addition to the forgoing, Xxxxxxxx shall pay to the Administrator an annual
amount of $150,000, prorated among the Funds and payable quarterly, as
compensation for the provision to Xxxxxxxx of the services of the Chief
Compliance Officer and related staff, facilities and expenses.
EXHIBIT B
Sub Administration Agreement
