EXHIBIT (g)(10)
FORM OF FUND 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, a New York banking organization ("BNY").
W I T N E S S E T H :
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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; and
(d) To the extent the performance of any services described in
Schedule I 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.
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;
(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");
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(v) The Fund's Notification of Registration under the 1940 Act
on Form N-8A filed with the SEC; and
(vi) The Fund's Prospectus and Statement of Additional
Information pertaining to the Series (collectively, the "Prospectus").
(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 the valuation
and computation services listed on Schedule I 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.
(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 Company, Inc. 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
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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) and transfer agent to cooperate with BNY and to provide BNY, upon request,
with such information, documents and advice relating to such Fund as is within
the possession or knowledge of such persons, in order to enable BNY to perform
its duties hereunder. In connection with its duties hereunder, BNY shall be
entitled to rely, and shall be held harmless by each Fund when acting in
reliance, upon the instructions, advice or any documents relating to such Fund
provided to BNY by any of the aforementioned persons. 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 BNY as
provided herein. All fees or costs charged by such persons shall be borne by the
appropriate Fund.
(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) Each 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 securities pricing or similar
service.
(h) BNY may apply to an officer of any Fund for written instructions
with
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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.
(i) 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.
(j) Notwithstanding any other provision contained in this Agreement
or Schedule I 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.
(k) BNY shall have no duties or responsibilities whatsoever except
such duties and responsibilities as are specifically set forth in this Agreement
and Schedule I attached hereto, and no covenant or obligation shall be implied
against BNY in connection with this Agreement.
(l) 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 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
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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 (l) 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.
(m) 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.
(n) 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 the Bank, 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.
5. 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,
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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.
6. 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 the Bank's control, unless such loss, damage or expense
arises out of the gross negligence or willful misconduct of the Bank.
(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
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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 the Bank by any third party described above or by or on behalf of a
Fund;
(ii) Action or inaction taken or omitted to be taken by BNY
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) 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 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.
(d) 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
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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.
7. 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 such Fund's custody account 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.
8. 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.
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9. 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.
10. 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.
11. 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.
12. 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.
13. 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
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provision is inapplicable to any person or circumstances, it shall nevertheless
remain applicable to all other persons and circumstances.
14. 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.
15. Notices.
All notices, requests, consents and other communications pursuant to this
Agreement in writing shall be sent as follows:
if to a Fund, at
if to BNY, at
The Bank of Xxx Xxxx
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.
16. 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.
17. 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: __________________________
on behalf of each Fund
identified on Exhibit A
attached hereto
THE BANK OF NEW YORK
By: __________________________
Title:
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EXHIBIT A
Name of Fund
EXHIBIT B
I, , of *, a (State) corporation
(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 by the Board of Directors of the
Fund to each such position and qualified therefor in conformity with the Fund's
Articles of Incorporation 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 the Bank.
Name Position Signature
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SCHEDULE I
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
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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