INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this ____ day of July, 1992 by and between BNY
Xxxxxxxx Intermediate Government 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 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
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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 .10% 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 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
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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 or 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
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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 June 30, 1994
or the date of the first annual or special meeting of the shareholders of the
Series and, if approved by a majority of the outstanding voting securities of
the Series, 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; provided, however, that if the
holders of shares of the Series fail to approve the Agreement as provided
herein, the Adviser may continue to serve in such capacity in the manner and to
the extent permitted by the 1940 Act and Rules thereunder. 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
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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 periods of time, change its name to delete
reference to "BNY Xxxxxxxx".
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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 BNY XXXXXXXX INTERMEDIATE
GOVERNMENT FUND
By By
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Name: Name:
Title: Title:
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