FUND ADMINISTRATION AND ACCOUNTING AGREEMENT
AGREEMENT
made as of _____________________, by and between each entity listed on Exhibit A hereto (each a
“Fund”, collectively the “Funds”), and The Bank of New York Mellon, a New
York banking organization (“BNY”).
WITNESSETH:
WHEREAS,
each Fund is an investment company registered under the Investment Company Act
of 1940, as amended (the “1940 Act”); and
WHEREAS,
each Fund desires to retain BNY to provide for the portfolios identified on
Exhibit A hereto (each, a “Series”) the services described herein, and BNY 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.
Each Fund
hereby appoints BNY as its agent for the term of this Agreement to perform the
services described herein. BNY hereby accepts such appointment and
agrees to perform the duties hereinafter set forth.
2. Representations and
Warranties.
Each Fund
hereby represents and warrants to BNY, 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 by the Fund in
accordance with all requisite action and constitutes a valid and legally binding
obligation of the Fund, enforceable in accordance with its terms;
(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;
(d) To
the extent the performance of any services described in Schedule II attached
hereto by BNY in accordance with the then effective Prospectus (as hereinafter
defined) for the Fund would violate any applicable laws or regulations, the Fund
shall immediately so notify BNY in writing and thereafter shall either furnish
BNY with the appropriate values of securities, net asset value or other
computation, as the case may be, or, subject to the prior approval of BNY,
instruct BNY in writing to value securities and/or compute net asset value or
other computations in a manner the Fund specifies in writing, and either the
furnishing of such values or the giving of such instructions shall constitute a
representation by the Fund that the same is consistent with all
applicable laws and regulations and with its Prospectus; and
(e) It
has implemented, and is acting in accordance with, procedures reasonably
designed to ensure that it will disseminate to all market participants, other
than Authorized Participants (as defined in its Prospectus and Statement of
Additional Information), each calculation of net asset value provided by BNY
hereunder to Authorized Participants at the time BNY provides such calculation
to Authorized Participants.
3. Delivery of
Documents.
(a) Each
Fund will promptly deliver to BNY true and correct copies of each of the
following documents as currently in effect and will promptly deliver to it all
future amendments and supplements thereto, if any:
(i) The
Fund’s articles of incorporation or other organizational document and all
amendments thereto (the “Charter”);
(ii) The
Fund’s bylaws (the “Bylaws”);
(iii) Resolutions
of the Fund’s board of directors or other governing body (the “Board”)
authorizing the execution, delivery and performance of this Agreement by the
Fund;
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(iv) The
Fund’s registration statement most recently filed with the Securities and
Exchange Commission (the “SEC”) relating to the shares of the Fund (the
“Registration Statement”);
(v)
The Fund’s Notification of Registration under the 1940 Act on Form N-8A filed
with the SEC;
(vi) The
Fund’s Prospectus and Statement of Additional Information pertaining to each
Series (collectively, the “Prospectus”); and
(vii) A
copy of any and all SEC exemptive orders issued to the Fund.
(b) Each
copy of the Charter shall be certified by the Secretary of State (or other
appropriate official) of the state of organization, and if the Charter is
required by law also to be filed with a county or other officer or official
body, a certificate of such filing shall be filed with a certified copy
submitted to BNY. Each copy of the Bylaws, Registration Statement and
Prospectus, and all amendments thereto, and copies of Board resolutions, shall
be certified by the Secretary or an Assistant Secretary of the appropriate
Fund.
(c) It
shall be the sole responsibility of each Fund to deliver to BNY its currently
effective Prospectus and BNY shall not be deemed to have notice of any
information contained in such Prospectus until it is actually received by
BNY.
4. Duties and Obligations of
BNY.
(a) Subject
to the direction and control of each Fund’s Board and the provisions of this
Agreement, BNY shall provide to each Fund (i) the administrative services set
forth on Schedule I attached hereto and (ii) the valuation and computation
services listed on Schedule II attached hereto.
(b) In
performing hereunder, BNY shall provide, at its expense, office space,
facilities, equipment and personnel.
(c) BNY
shall not provide any services relating to the management, investment advisory
or sub-advisory functions of any Fund, distribution of shares of any Fund,
maintenance of any Fund’s financial records or other services normally performed
by the Funds’ respective counsel or independent auditors.
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(d) Upon
receipt of a Fund’s prior written consent (which shall not be unreasonably
withheld), BNY 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. Notwithstanding the foregoing, no Fund consent shall
be required for any such delegation to any other subsidiary of The Bank of New
York Mellon Corporation. BNY 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 BNY acts in good
faith and without negligence or wilful misconduct in the selection of such
delegee or agent.
(e) Each
Fund shall cause its officers, advisors, sponsor, distributor, legal counsel,
independent accountants, current administrator (if any), transfer agent, and any
other service provider to cooperate with the BNY and to provide the BNY, upon
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 BNY, is necessary in order to enable it to perform its duties
hereunder. The BNY 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
BNY by any of the aforementioned persons. The BNY 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 BNY
as provided herein and shall be held harmless by each Fund when acting in
reliance in good faith upon such information, documents or advice relating to
such Fund. All fees or costs charged by such persons shall be borne
by the appropriate Fund. In the event that any services performed by
the BNY hereunder rely, in whole or in part, upon information obtained from a
third party service utilized or subscribed to by the BNY which the BNY in its
reasonable judgment deems reliable, the BNY 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.
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(f) Nothing
in this Agreement shall limit or restrict BNY, any affiliate of BNY or any
officer or employee thereof from acting for or with any third parties, and
providing services similar or identical to same or all of the services provided
hereunder.
(g) Subject
to the provisions of this Agreement, BNY shall compute the net asset value per
share of the Fund and shall value the securities held by the Fund at such times
and dates and in the manner specified in the then currently effective Prospectus
of the Fund, except that notwithstanding any language in the Prospectus, in no
event shall BNY be required to determine, or have any obligations with respect
to, whether a market price represents any fair or true value, nor to adjust any
price to reflect any events or announcements, including, without limitation,
those with respect to the issuer thereof, it being agreed that all such
determinations and considerations shall be solely the responsibility of the
Fund. BNY shall provide a report of such net value to the Fund and
Authorized Participants at the respective times set forth in Schedule II, as
amended from time to time. To the extent valuation of securities or
computation of a net asset value as specified in the Fund’s then currently
effective Prospectus is at any time inconsistent with any applicable laws or
regulations, the Fund shall immediately so notify BNY in writing and thereafter
shall either furnish BNY at all appropriate times with the values of such
securities and the Fund’s net asset value, or subject to the prior approval of
BNY, instruct BNY in writing to value securities and compute net asset value in
a manner which the Fund then represents in writing to be consistent with all
applicable laws and regulations. The Fund may also from time to time,
subject to the prior approval of BNY, instruct BNY in writing to compute the
value of the securities or net asset value in a manner other than as specified
in this paragraph. By giving such instruction, the Fund shall be
deemed to have represented that such instruction is consistent with all
applicable laws and regulations and the then currently effective Prospectus of
the Fund. The Fund shall have sole responsibility for determining the
method of valuation of securities and the method of computing net asset
value.
(h) The
Fund shall furnish BNY with any and all instructions, explanations, information,
specifications and documentation deemed necessary by BNY in the performance of
its duties hereunder, including, without limitation, the amounts or written
formula for calculating the amounts and times of accrual of Fund liabilities and
expenses. BNY shall not be required to include as Fund liabilities
and expenses, nor as a reduction of net asset value, any accrual for
any federal, state, or foreign income taxes unless the Fund shall have specified
to BNY the precise amount of the same to be included in liabilities and expenses
or used to reduce net asset value. Each Fund shall also furnish BNY
with bid, offer, or market values of securities if BNY notifies such Fund that
same are not available to BNY from a security pricing or similar service
utilized, or subscribed to, by BNY which BNY in its judgment deems reliable at
the time such information is required for calculations hereunder. At
any time and from time to time, the Fund also may furnish BNY with bid, offer,
or market values of Securities and instruct BNY to use such information in its
calculations hereunder. BNY shall at no time be required or obligated
to commence or maintain any utilization of, or subscriptions to, any particular
securities pricing or similar service.
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(i) BNY
may apply to an officer or duly authorized agent of any Fund for written
instructions with respect to any matter arising in connection with BNY’s
performance hereunder for such Fund, and BNY shall not be liable for any action
taken or omitted to be taken by it in good faith in accordance with such
instructions. Such application for instructions may, at the option of
BNY, set forth in writing any action proposed to be taken or omitted to be taken
by BNY with respect to its duties or obligations under this Agreement and the
date on and/or after which such action shall be taken, and BNY shall not be
liable for any action taken or omitted to be taken in accordance with a proposal
included in any such application on or after the date specified therein unless,
prior to taking or omitting to take any such action, BNY has received written
instructions in response to such application specifying the action to be taken
or omitted.
(j) BNY
may consult with counsel to the appropriate Fund or its own counsel, 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.
(k) Notwithstanding
any other provision contained in this Agreement or Schedule I or II attached
hereto, BNY shall have no duty or obligation to with respect to, including,
without limitation, any duty or obligation to determine, or advise or notify any
Fund of: (i) the taxable nature of any distribution or amount received or deemed
received by, or payable to, a Fund, (ii) the taxable nature or effect on a Fund
or its shareholders of any corporate actions, class actions, tax reclaims, tax
refunds or similar events, (iii) the taxable nature or taxable amount of any
distribution or dividend paid, payable or deemed paid, by a Fund to its
shareholders; or (iv) the effect under any federal, state, or foreign income tax
laws of a Fund making or not making any distribution or dividend payment, or any
election with respect thereto.
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(l) BNY
shall have no duties or responsibilities whatsoever except such duties and
responsibilities as are specifically set forth in this Agreement and Schedules I
and II attached hereto, and no covenant or obligation shall be implied against
BNY in connection with this Agreement.
(m) BNY,
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 a Fund 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; the amounts or formula for calculating the amounts
and times of accrual of Series’ liabilities and expenses; the amounts receivable
and the amounts payable on the sale or purchase of Securities; and amounts
receivable or amounts payable for the sale or redemption of Fund shares effected
by or on behalf of a Fund. In the event BNY’s computations
hereunder rely, in whole or in part, upon information, including, without
limitation, bid, offer or market values of securities or other assets, or
accruals of interest or earnings thereon, from a pricing or similar service
utilized, or subscribed to, by BNY which BNY in its judgment deems reliable, BNY
shall not be responsible for, under any duty to inquire into, or deemed to make
any assurances with respect to, the accuracy or completeness of such
information. Without limiting the generality of the foregoing, BNY
shall not be required to inquire into any valuation of securities or other
assets by a Fund or any third party described in this (m) even though BNY 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.
(n) BNY,
in performing the services required of it under the terms of this Agreement,
shall not be responsible for determining whether any interest accruable to a
Fund is or will be actually paid, but will accrue such interest until otherwise
instructed by such Fund.
(o) BNY
shall not be responsible for delays or errors which occur by reason of
circumstances beyond its control in the performance of its duties under this
Agreement, including, without limitation, labor difficulties within or without
BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of
transportation, interruptions, loss, or malfunctions of utilities,
communications or computer (hardware or software) services. Nor shall BNY
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 BNY to supply any instructions,
explanations, information, specifications or documentation deemed necessary by
BNY in the performance of its duties under this Agreement.
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5. Records.
The books and records pertaining to the
Funds which are in the possession or under the control of BNY shall be the
property of the Funds. A Fund and its authorized persons shall have
access to such books and records at all times during BNY’s normal business
hours. Upon reasonable request of a Fund, copies of any such books
and records shall be provided by BNY to a Fund or an authorized
person. BNY shall preserve and maintain all books and records
relating to its duties hereunder pursuant to Section 31 of the 1940 Act and the
rules thereunder.
6. 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, management, 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.
-8-
7. Compliance
Services.
(a) If
Schedule I contains a requirement for the BNY to provide the Fund with
compliance services, such services shall be provided pursuant to the terms of
this Section 6 (the “Compliance Services”). The precise compliance
review and testing services to be provided shall be as mutually agreed between
the BNY and each Fund, and the results of the BNY’s Compliance Services shall be
detailed in a compliance summary report (the “Compliance Summary Report”)
prepared on a periodic basis as mutually agreed. Each Compliance
Summary Report shall be subject to review and approval by the
Fund. The BNY shall have no responsibility or obligation to provide
Compliance Services other that those services specifically listed in Schedule
I.
(b) The
Fund will examine each Compliance Summary Report delivered to it by the BNY and
notify the BNY of any error, omission or discrepancy within ten (10) days of its
receipt. The Fund agrees to notify the BNY promptly if it fails to
receive any such Compliance Summary Report. The Fund further
acknowledges that unless it notifies the BNY of any error, omission or
discrepancy within 10 days, such Compliance Summary Report shall be deemed to be
correct and conclusive in all respects. In addition, if the Fund
learns of any out-of-compliance condition before receiving a Compliance Summary
Report reflecting such condition, the Fund will notify the BNY of such condition
within one business day after discovery thereof.
(c) While the BNY will endeavor to identify
out-of-compliance conditions, the BNY does not and could not for the
fees charged, make any guarantees,
representations or warranties with respect to its ability to identify all such
conditions. In the event of any
errors or omissions in the performance of Compliance Services, the Fund’s sole
and exclusive remedy and the BNY’s sole liability shall be limited to
re-performance by the BNY of the Compliance Services affected and in connection
therewith the correction of any error or omission, if practicable and the
preparation of a corrected report, at no cost to the Fund.
8. Standard of Care;
Indemnification.
(a) Except
as otherwise provided herein, BNY 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 BNY’s own gross negligence or wilful
misconduct. In no event shall BNY 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. BNY 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, resulting 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 Fund, or for delays
caused by circumstances beyond BNY’s control, unless such loss, damage or
expense arises out of the gross negligence or willful misconduct of
BNY.
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(b) Each
Fund shall indemnify and hold harmless BNY 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 BNY, by reason of or as a
result of any action taken or omitted to be taken by BNY 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 an officer of such Fund, or (iv) any opinion of legal counsel
for such Fund or BNY, or arising out of transactions or other activities of such
Fund which occurred prior to the commencement of this Agreement; provided, that no
Fund shall indemnify BNY for costs, expenses, damages, liabilities or claims for
which BNY is liable under preceding 6(a). This indemnity shall be a
continuing obligation of each Fund, its successors and assigns, notwithstanding
the termination of this Agreement. Without limiting the generality of the
foregoing, each Fund shall indemnify BNY against and save BNY
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 any
one or more of the following:
(i) Errors
in records or instructions, explanations, information, specifications or
documentation of any kind, as the case may be, supplied to BNY by any third
party described above or by or on behalf of a Fund;
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(ii) Action
or inaction taken or omitted to be taken by BNY in good faith pursuant to
written or oral instructions of the Fund or otherwise without gross negligence
or willful misconduct;
(iii) Any
action taken or omitted to be taken by BNY in good faith in accordance with the
advice or opinion of counsel for a Fund or its own counsel;
(iv) Any
improper use by a Fund or its agents, distributor or investment advisor of any
valuations or computations supplied by BNY pursuant to this
Agreement;
(v) The
method of valuation of the securities and the method of computing each Series’
net asset value; or
(vi) Any
valuations of securities or net asset value provided by a Fund.
(c) In
any case a Fund is asked to indemnify or hold BNY harmless, BNY shall promptly
advise a Fund of the pertinent facts concerning the situation in question, and
will use reasonable care to notify a Fund promptly concerning any situation
which appears likely to present the potential for a claim for
indemnification. If it is finally determined by a court of competent
jurisdiction that BNY was not entitled to indemnification (e.g. due to its gross
negligence or willful misconduct) it must repay advances or other expenses paid
by a Fund. A Fund shall be entitled to participate at its own defense
or, if it so elects, to assume the defense of any suit brought to enforce any
claims subject to this indemnification provision. If a Fund elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by the Trust and approved by BNY, whose approval shall not be
unreasonably withheld. If a Fund elects to assume the defense of any
claim and retains counsel, BNY shall bear the fees and expenses of any
additional counsel retained by it. If a Fund does not elect to assume
the defense of a claim, it will reimburse BNY for the fees and expense of any
counsel it retains. None of the parties hereto shall settle or
compromise any action, suit, proceeding or claim if such settlement or
compromise provides for admission of liability on the part of the indemnified
party without such indemnified party’s written consent.
(d) Actions
taken or omitted in reliance on oral or written instructions given by persons
duly authorized, or reasonably believed by BNY to be duly authorized, by the
board of each Fund to give oral or written instructions, or upon any
information, order, indenture, stock certificate, power of attorney, assignment,
affidavit or other instrument believed by BNY 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.
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(e) Notwithstanding
any other provision contained in this Agreement, BNY shall have no duty or
obligation with respect to, including, without limitation, any duty or
obligation to determine, or advise or notify the Fund of: (a) the taxable nature
of any distribution or amount received or deemed received by, or payable to, a
Fund; (b) the taxable nature or effect on a Fund or its shareholders of any
corporate actions, class actions, tax reclaims, tax refunds, or similar events;
(c) the taxable nature or taxable amount of any distribution or dividend paid,
payable or deemed paid, by a Fund to its shareholders; or (d) the effect under
any federal, state, or foreign income tax laws of the Fund making or not making
any distribution or dividend payment, or any election with respect
thereto.
9. Compensation.
For the
services provided hereunder, each Fund agrees to pay BNY such compensation as is
mutually agreed from time to time 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
BNY in performing its duties hereunder. Except as hereinafter set
forth, compensation shall be calculated and accrued daily and paid
monthly. Each Fund authorizes BNY to debit an account provided by the
Fund for all amounts due and payable hereunder. BNY 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 BNY, each Fund’s net asset value shall be computed at
the times and in the manner specified in the Fund’s Prospectus.
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10. Term of
Agreement.
(a) This
Agreement shall continue until terminated by either BNY giving to a Fund, or a
Fund giving to BNY, 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
BNY such compensation as may be due as of the date of such termination, and
shall reimburse BNY for any disbursements and expenses made or incurred by BNY
and payable or reimbursable hereunder.
(b) Notwithstanding
the foregoing, BNY may terminate this Agreement upon 30 days prior written
notice to a Fund if such Fund shall terminate its custody agreement with The
Bank of New York, or fail to perform its obligations hereunder in a material
respect.
11. Authorized
Persons.
Attached
hereto as Exhibit B is a list of persons duly authorized by the board of each
Fund to execute this Agreement and give any written or oral instructions, or
written or oral specifications, by or on behalf of such Fund. From
time to time each Fund may deliver a new Exhibit B to add or delete any person
and BNY shall be entitled to rely on the last Exhibit B actually
received by BNY.
12. Amendment.
This
Agreement may not be amended or modified in any manner except by a written
agreement executed by BNY and the Fund to be bound thereby, and authorized or
approved by such Fund’s Board.
13. 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 BNY, or by
BNY without the written consent of the affected Fund accompanied by the
authorization or approval of such Fund’s Board.
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14. 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, and
waives to the fullest extent permitted by law its right to a trial by
jury. To the extent that in any jurisdiction any Fund may now or
hereafter be entitled to claim, for itself or its assets, immunity from suit,
execution, attachment (before or after judgment) or other legal process, such
Fund irrevocably agrees not to claim, and it hereby waives, such
immunity.
15. 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.
16. No
Waiver.
Each and
every right granted to BNY 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 BNY to exercise, and no delay in exercising, any right will operate as a
waiver thereof, nor will any single or partial exercise by BNY of any right
preclude any other or future exercise thereof or the exercise of any other
right.
17. Notices.
All
notices, requests, consents and other communications pursuant to this Agreement
in writing shall be sent as follows:
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if to a Fund, at
X.X. Xxx
00000
Xxxx,
Xxxxxx 00000
if to BNY, at
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Title:
or at
such other place as may from time to time be designated in
writing. Notices hereunder shall be effective upon
receipt.
18. 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.
19. 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.
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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.
| By: __________________________ | ||
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on
behalf of each Fund
|
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identified
on Exhibit A
|
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|
attached
hereto
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THE
BANK OF NEW YORK MELLON
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By:
__________________________
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|
Title:
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EXHIBIT
A
Name of
Fund
One
Fund
EXHIBIT
B
I, Xxxx
Xxxxxx
, of U.S. One Trust, a (Delaware ) trust (the “Fund”), do hereby certify
that:
The
following individuals serve in the following positions with the Fund, and each
has been duly elected or appointed to each such position and qualified therefor
in conformity with the Fund’s organizational documents and by-laws, and the
signatures set forth opposite their respective names are their true and correct
signatures. Each such person is authorized to give written or oral
instructions or written or oral specifications by or on behalf of the Fund to
BNY.
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Name
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Position
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Signature
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Xxxx
Xxxxxx
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President/Treasurer
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SCHEDULE
I
ADMINISTRATIVE
SERVICES
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1.
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Prepare
minutes of Board of Director meetings and assist the Secretary of each
Fund in preparation for Board meetings. Such minutes, meeting
agendas and other material prepared in preparation for each Board meeting
are subject to the review and approval of Fund
counsel.
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2.
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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.
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3.
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Participate
in the periodic updating of each Fund’s Registration Statement and
Prospectus and, subject to approval by such Fund’s Treasurer and legal
counsel, coordinate the preparation, filing, printing and dissemination of
periodic reports and other information to the SEC and the Fund’s
shareholders, including annual and semi-annual reports to shareholders,
Form N-SAR, Form N-CSR, Form N-Q and notices pursuant to Rule
24(f)-2.
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4.
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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.
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5.
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Prepare
and, subject to approval of each Fund’s Treasurer, disseminate to such
Fund’s Board quarterly unaudited financial statements and schedules of
such Fund’s investments and make presentations to the Board, as
appropriate.
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6.
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Subject
to approval of each Fund’s Board, assist such Fund in obtaining fidelity
bond and E&O/D&O insurance
coverage.
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7.
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Prepare
statistical reports for outside information services (e.g.,
IBC/Xxxxxxxx, ICI, Lipper Analytical and
Morningstar).
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8.
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Attend
shareholder and Board meetings as requested from time to
time.
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9.
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Subject
to review and approval by the Fund Treasurer, establish appropriate
expense accruals, maintain expense files and coordinate the payment of
invoices for each Fund.
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SCHEDULE
II
VALUATION AND COMPUTATION
SERVICES
I. BNY
shall maintain the following records on a daily basis for each
Series.
1. Report
of priced portfolio securities
2. Statement
of net asset value per share
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Such
reports and statements shall be provided to the Fund at __?___ p.m.
New York time and to Authorized Participants at __?___ p.m. New York
time, in each case by such means as BNY and the Fund may agree upon from
time to time.
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II. BNY
shall maintain the following records on a monthly basis for each
Series:
1. General
Ledger
2. General
Journal
3. Cash
Receipts Journal
4. Cash
Disbursements Journal
5. Subscriptions
Journal
6. Redemptions
Journal
7. Accounts
Receivable Reports
8. Accounts
Payable Reports
9. Open
Subscriptions/Redemption Reports
10. Transaction
(Securities) Journal
11. Broker
Net Trades Reports
III. BNY
shall prepare a Holdings Ledger on a quarterly basis, and a Buy-Sell Ledger
(Broker’s Ledger) on a semiannual basis for each Series. Schedule D
shall be produced on an annual basis for each Series.
The above
reports may be printed according to any other required frequency to meet the
requirements of the Internal Revenue Service, The Securities and Exchange
Commission and the Fund’s Auditors.
IV. For
internal control purposes, BNY uses the Account Journals produced by The Bank of
New York Custody System to record daily settlements of the following for each
Series:
1. Securities
bought
2. Securities
sold
3. Interest
received
4. Dividends
received
5. Capital
stock sold
6. Capital
stock redeemed
7. Other
income and expenses
All
portfolio purchases for the Fund are recorded to reflect expected maturity value
and total cost including any prepaid interest.
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