ADMINISTRATION AGREEMENT
AGREEMENT made as of July , 1992, by and between BNY Xxxxxxxx Funds,
Inc., a corporation organized under the laws of Maryland (the "Corporation"),
and BNY Xxxxxxxx Distribu tors, Inc. a Delaware Corporation (the
"Administrator").
W I T N E S S E T H :
WHEREAS, the Corporation is an investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Corporation intends to offer its shares in the series set
forth in Exhibit A hereto (each a "Series" and collectively the "Series");
WHEREAS, the Corporation desires to retain the Adminis trator to
provide administration services for the Series 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.
The Corporation hereby appoints the Administrator as its agent for the
term of this Agreement to perform the ser vices described herein. The
Administrator hereby accepts such appointment and agrees to perform the duties
herein after set forth.
2. Representations and Warranties.
The Corporation hereby represents and warrants to the Administrator,
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 Corporation in accordance with all requisite action and constitutes a valid
and legally binding obligation of the Corporation, 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 con
ducted; 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.
3. Delivery of Documents.
(a) The Corporation will promptly deliver to the Administrator a true
and correct copy of each of the follow ing documents as currently in effect and
will promptly deliver to it all future amendments and supplements thereto, if
any:
(i) The Corporation's articles of incorporation and all
amendments thereof (the "Charter");
(ii) The Corporation's bylaws (the "Bylaws");
(iii) Resolutions of the Corporation's board of directors (the
"Board") authorizing the execution, delivery and performance of this Agreement
by the Corporation;
(iv) The Corporation's registration statement most recently filed
with the Securities and Exchange Commission (the "SEC") relating to the shares
of the Corporation (the "Registration Statement");
(v) The Corporation's Notification of Registration under the
1940 Act on Form N-8A filed with the SEC; and
(vi) The Corporation's Prospectus and Statement of Additional
Information pertaining to each Series (collectively, the "Prospectus").
(b) The Charter shall be certified by the Maryland State Department of
Assessments and Taxation. 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 Corporation.
(c) It shall be the sole responsibility of the Corpor ation to deliver
to the Administrator the currently effec tive Prospectus of each Series and the
Administrator shall not be deemed to have notice of any information contained in
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such Prospectus until it is actually received by the Administrator.
4. Duties and Obligations of the Administrator.
(a) Subject to the direction and control of the Corporation's Board and
the provisions of this Agreement, the Administrator shall provide to each Series
the adminis trative 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, in its role as administrator, shall not provide
any services relating to the management, investment advisory or sub-advisory
functions of any Series, distribution of shares of any Series or other services
normally performed by the Series' respective counsel or independent auditors.
(d) Upon receipt of a Series' prior written consent, the Administrator
may delegate any of its duties and obliga tions hereunder to any delegee or
agent whenever and on such terms and conditions as it deems necessary or
appropriate. The Administrator shall not be liable to any Series 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 gross negligence or wilful misconduct in the selection of
such delegee or agent.
(e) The Corporation shall cause its officers, advi sors, sponsor,
distributor, legal counsel, independent accountants and transfer agent to
cooperate with the Admin istrator and to provide the Administrator, upon
request, with such information, documents and advice relating to such Series as
is within the possession or knowledge of such persons, in order to enable the
Administrator to perform its duties hereunder. In connection with its duties
hereunder, the Administrator shall be entitled to rely, and shall be held
harmless by each Series when acting in reliance, upon the instructions, advice
or any documents relating to such Series provided to the Administrator by any of
the aforemen tioned persons. All fees or costs charged by such persons shall be
borne by the appropriate Series.
(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.
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(g) The Administrator shall have no duties or respons ibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement and Schedule I hereto, and no covenant or obligation shall be
implied against the Administrator in connection with this Agreement.
(h) The Administrator is hereby authorized to contract with one or more
third parties for the provision of the administrative services set forth on
Schedule I hereto; provided that no assignment of responsibility will release
the Administrator from its primary responsibility for providing such services to
each Series.
5. Allocation of Expenses.
Except as otherwise provided herein, all costs and expenses arising or
incurred in connection with the perform ance of this Agreement shall be paid by
the appropriate Series, including but not limited to, organizational costs and
costs of maintaining corporate existence, taxes, inter est, brokerage fees and
commissions, insurance premiums, compensation and expenses of such Series'
directors, offi cers 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 Series shares, fees and expenses incident to the regis tration or
qualification under federal or state securities laws of the Series or its
shares, costs (including printing and mailing costs) of preparing and
distributing Prospec tuses, reports, notices and proxy material to such the
shareholders of such Series, all expenses incidental to holding meetings of such
Series' directors and shareholders, and extraordinary expenses as may arise,
including litiga tion affecting such Series and legal obligations relating
thereto for which the Series may have to indemnify its directors and officers.
6. Standard of Care; Indemnification.
(a) Except as otherwise provided herein, the Adminis trator shall not
be liable for any costs, expenses, damages, liabilities or claims (including
attorneys' and accountants' fees) incurred by a Series, except those costs,
expenses, damages, liabilities or claims arising out of the Adminis trator's own
bad faith, gross negligence or wilful miscon duct. In no event shall the
Administrator be liable to any Series or any third party for special, indirect
or conse quential damages, or lost profits or loss of business, arising under or
in connection with this Agreement.
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(b) Each Series shall indemnify and hold harmless the Administrator
from and against any and all costs, expenses, damages, liabilities and claims
(including claims asserted by a Series), and reasonable attorneys' and
accountants' fee 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
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, (ii)
such Series' Registration Statement or Prospec tus, (iii) any instructions of an
officer of such Series, or (iv) any opinion of legal counsel for such Series or
the Administrator, or arising out of transactions or other activities of such
Series which occurred prior to the commencement to this Agreement; provided,
that no Series shall indemnify the Administrator for costs, expenses, damages,
liabilities or claims arising out of the Adminis trator's own negligence, bad
faith or wilful misconduct. This indemnity shall be a continuing obligation of
each Series, 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, inden ture, 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 per sons
believed to be authorized to sign, countersign or execute the same, or upon the
opinion of legal counsel for a Series or its own counsel, shall be conclusively
presumed to have been taken or omitted in good faith.
7. Compensation.
For the services provided hereunder, each Series agrees to pay the
Administrator at the end of each month an Admin istration fee accrued daily and
payable monthly based on the annual percentage rate of such Series' average
daily net assets as set forth in Exhibit A hereto. Each Series authorizes the
Administrator to debit such Series' custody account for all amounts due and
payable hereunder. 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 month and shall be payable
upon the effective date of termination of this Agreement. For the purpose of
deter mining compensation payable to the Administrator, each Series' net asset
value shall be computed at the times and in the manner specified in the Series'
Prospectus.
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8. Term of Agreement.
(a) This Agreement shall continue until June 30, 1994, and thereafter
unless terminated by either the Administrator giving to a Series, or a Series
giving to the Administrator, a notice in writing specifying the date of such
termination, which date shall be not less than 60 days after the date of the
giving of such notice. Upon termination hereof, the affected Series shall pay to
the Administrator such compen sation 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.
(b) Notwithstanding the foregoing, the Administrator may terminate this
Agreement upon 60 days' prior written notice to a Series if such Series shall
fail to perform its obligations hereunder in a material respect.
9. Amendment.
This Agreement may not be amended or modified in any manner except by a
written agreement executed by the Admin istrator and the Series to be bound
thereby, and authorized or approved by the Corporation's Board of Directors.
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 Series without the written consent
of the Administrator, or by the Administrator without the written consent of the
affected Series accompanied by the authori zation or approval of such Series'
Board.
11. Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York, without regard to conflict of laws principles thereof.
12. Severability.
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable, 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.
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13. No Waiver.
Each and every right granted to the Administrator here under 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.
14. Notices.
All notices, requests, consents and other communica tions pursuant to
this Agreement in writing shall be sent as follows:
if to a Series, at
x/x XXX Xxxxxxxx Funds, Inc.
000 X. 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
with a copy to
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: [General Counsel];
if to the Administrator, at
BNY Xxxxxxxx Distributors, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Chief Executive Officer;
or at such other place as may from time to time be desig nated 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.
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16. Several Obligations.
The parties acknowledge that the obligations of the Series hereunder
are several and not joint, that no Series shall be liable for any amount owing
by another Series and that the Series have executed one instrument for
convenience only.
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:
---------------------------------
Name:
Title:
(on behalf of each Series
identified on Exhibit A
attached hereto)
BNY XXXXXXXX DISTRIBUTORS, INC.
By:
---------------------------------
Name:
Title:
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EXHIBIT A
Name of Series
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1.) BNY Xxxxxxxx Money Fund .10%
2.) BNY Xxxxxxxx Intermediate
Government Fund .20%
3.) BNY Xxxxxxxx Intermediate
New York Tax-Exempt Fund .20%
4.) BNY Xxxxxxxx Equity Income Fund .20%
SCHEDULE I
Administrative Services [ * TO BE EXPANDED * ]
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1. Maintain each Series' minute book and its general corporate
records (including accounting books and records).
2. Maintain all records required of registered investment
companies pursuant to Section 31 of the 1940 Act and the Rules
thereunder.
3. Monitor and document compliance by each Series with its
policies and restrictions as described in its Prospectus.
4. Participate in the periodic updating of each Series'
Registration Statement and Prospectus and, subject to
approval by such Series' Treasurer and legal counsel,
coordinate the preparation, filing, printing and
dissemination of periodic reports and other information
to the SEC and the Series' shareholders, including
annual and semi-annual reports to shareholders, annual
and semi-annual Form N-SAR, notices pursuant to
Rule 24(f)-2 and proxy materials.
5. Prepare federal, state and local income tax returns for
each Series and file such returns upon the approval of
the Series' respective independent accountants; monitor
and report on Sub-Chapter M qualifications; prepare and
file all Form 1099s with respect to each Series' direc
tors; monitor compliance with Section 4982 of the
Internal Revenue Code; calculate and maintain records
pertaining to Original Issue Discount and premium
amortization as required; perform ongoing wash sales
review (i.e., purchases and sales of Series investments
within 30 days of each other).
6. Prepare and, subject to approval of each Series' Treasurer,
disseminate to such Series' Board quarterly unaudited
financial statements and schedules of such Series investments
and make presentations to the Board, as appropriate.
7. Subject to approval of each Series' Board, assist such Series
in obtaining fidelity bond and E&O/D&O insurance coverage.
8. Prepare statistical reports for outside information services
(e.g., IBC/Xxxxxxxx, ICI and Lipper Analytical).
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9. Attend shareholder and Board meetings as requested from time
to time.
10. Maintain expense files and coordinate the payment of invoices.
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