Exhibit (9)(mm)
SUB-ADMINISTRATION AGREEMENT
AGREEMENT made as of June 30, 2005, by and between BISYS Fund Services
Ohio, Inc. ("BISYS"), an Ohio corporation, and The Bank of New York, a New York
banking organization ("BNY").
WITNESSETH:
WHEREAS, BNY has entered into an Administration Agreement (the
"Administration Agreement"), with BNY Xxxxxxxx Funds, Inc. (the "Company"), a
Maryland corporation registered with the Securities and Exchange Commission (the
"SEC") as an open-end management investment company under the Investment Company
Act of 1940, as amended (the "1940 Act");
WHEREAS, pursuant to the Administration Agreement, BNY has agreed to
provide certain administration services for the investment portfolios known as
the BNY Xxxxxxxx Funds listed on Schedule II hereto (individually referred to in
this Agreement as a "Fund" and collectively as the "Funds");
WHEREAS, BNY desires to retain BISYS to assist it in performing certain
administration services for the Funds; and
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
1. Appointment.
BNY hereby retains BISYS, subject to the general supervision, direction and
control of the Company's board of directors (the "Board") and BNY, to act as
sub-administrator to BNY and to furnish the Company and Funds with the services
as set forth in Schedule I hereto. BISYS hereby accepts such appointment to
perform the duties set forth below.
BNY hereby represents and warrants to BISYS that this Agreement has been
disclosed to the Board, and that BNY has provided all such information to the
Board as may be appropriate (or as has been requested by the Board) in
connection with the Board's review or approval of the arrangements contemplated
under this Agreement, including amounts expended by BNY under this Agreement.
It is understood that BNY will assist BISYS in obtaining such information
from the Company and the Company's service providers as BISYS may reasonably
require in order to provide the services hereunder. BNY shall perform
administrative services to the Company, that are not provided by BISYS
hereunder, as may be agreed from time to time between BNY and the Company.
BISYS shall, for all purposes herein, be deemed to be an independent
contractor and, unless otherwise expressly provided or authorized, shall have no
authority to act for or represent the Company in any way and shall not be deemed
an agent of the Company.
2. Representations and Warranties.
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(a) BNY represents and warrants to BISYS that this Agreement has been
duly authorized by BNY and, when executed and delivered by BNY, will
constitute a legal, valid and binding obligation of BNY, enforceable
against BNY in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured
parties.
(b) BISYS represents and warrants that: (i) the various procedures and
systems which BISYS has implemented with regard to safekeeping from loss or
damage attributable to fire, theft or any other cause of the blank checks,
records, and other data of the Company and BISYS' records, data, equipment,
facilities and other property used in the performance of its obligations
hereunder are adequate and that it will make such changes therein from time
to time as are reasonably required for the secure performance of its
obligations hereunder; and (ii) this Agreement has been duly authorized by
BISYS and, when executed and delivered by BISYS, will constitute a legal,
valid and binding obligation of BISYS, enforceable against BISYS in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the right and remedies of creditors and secured parties.
3. Duties and Obligations of BISYS.
(a) Subject to the general direction and control of the Board and BNY and
the provisions of this Agreement, BISYS shall provide to the Company the
administrative services set forth on Schedule I attached hereto.
(b) In performing hereunder, BISYS shall provide, at its expense (except as
otherwise expressly set forth in this Agreement), office space, facilities,
equipment and personnel.
(c) BISYS shall not provide under this Agreement any services relating to
the management, investment advisory or sub-advisory functions of any Fund,
distribution of shares of any Fund, or services normally performed by the Funds'
respective counsel or independent auditors.
(d) Upon receipt of the Company's prior written consent (which shall not be
unreasonably withheld), BISYS 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 such
consent shall be required for any such delegation to any affiliate of BISYS.
BISYS 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 BISYS acts in good faith and without negligence or
willful misconduct in the selection and supervision of such delegee or agent.
(e) Nothing in this Agreement shall limit or restrict BISYS, any affiliate
of BISYS or any officer or employee thereof from acting as administrator (or
sub-administrator) for or with any third parties.
(f) BISYS shall have no duties or responsibilities 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 BISYS
in connection with this Agreement.
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4. Allocation of Expenses.
BNY represents and warrants that, pursuant to the Administration Agreement,
except as otherwise provided in the Administration Agreement, all costs and
expenses arising or incurred in connection with the performance of such
Agreement shall be paid by the Company, 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 the Company's 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 Company shares, fees and expenses incident
to the registration or qualification under federal or state securities laws of
the Company or its shares, costs (including printing and mailing costs) of
preparing and distributing Prospectuses, reports, notices and proxy material to
the Company's shareholders, all expenses incidental to holding meetings of the
Company's directors and shareholders, and extraordinary expenses as may arise,
including litigation affecting the Company and legal obligations relating
thereto for which the Company may have to indemnify its directors and officers.
5. Standard of Care; Indemnification.
(a) Except as otherwise expressly provided herein, BISYS shall not be
liable for any costs, expenses, damages, liabilities or claims (including
attorneys' and accountants' fees) incurred by BNY or a Fund, except those costs,
expenses, damages, liabilities or claims arising out of BISYS's own bad faith,
gross negligence or willful misconduct. In no event shall BISYS be liable to BNY
or any Fund or any third party for special, indirect or consequential damages,
or lost profits or loss of business, arising under or in connection with this
Agreement, even if previously informed of the possibility of such damages and
regardless of the form of action.
(b) BNY shall indemnify and hold harmless BISYS 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 BISYS, by
reason of or as a result of any action taken or omitted to be taken by BISYS 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) a Fund's Registration Statement or
Prospectus, (iii) any instructions of BNY or an officer of the Company, or (iv)
any opinion of legal counsel for a Fund or BISYS, or arising out of transactions
or other activities of a Fund which occurred prior to the commencement of this
Agreement; provided, that BNY shall not indemnify BISYS for costs, expenses,
damages, liabilities or claims arising out of BISYS's own gross negligence, bad
faith or willful misconduct. This indemnity shall be a continuing obligation of
BNY, its successors and assigns, notwithstanding the termination of this
Agreement.
(c) Actions taken or omitted in reliance on oral or written instructions,
or upon any information, order, indenture, stock certificate, power of attorney,
assignment, affidavit or other instrument believed by BISYS 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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(d) BISYS shall indemnify, defend, and hold BNY, and its directors,
officers, agents and nominees harmless 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, resulting
directly and proximately from BISYS' willful misfeasance, bad faith or gross
negligence in the performance of, or the reckless disregard of, its duties or
obligations hereunder.
(e) In order that the indemnification provisions contained herein shall
apply, if in any case a party may be asked to indemnify or hold the other party
harmless, the indemnifying party shall be fully and promptly advised in writing
of all pertinent facts concerning the situation in question. As to any matter
eligible for indemnification, an indemnified party shall act reasonably and in
accordance with good faith business judgment and shall not effect any settlement
or confess judgment without the consent of the indemnifying party, which consent
shall not be withheld or delayed unreasonably.
(f) The indemnifying party shall be entitled to participate at its own
expense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the indemnifying
party elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by it and reasonably satisfactory to the indemnified
party. In the event that the indemnifying party elects to assume the defense of
any suit and retain counsel, the indemnified party shall bear the fees and
expenses of any additional counsel retained by it. An indemnifying party shall
not effect any settlement without the consent of the indemnified party (which
shall not be withheld or delayed unreasonably by the indemnified party) unless
such settlement imposes no liability, responsibility or other obligation upon
the indemnified party and relieves it of all fault. If the indemnifying party
does not elect to assume the defense of suit, it will reimburse the indemnified
party for the reasonable fees and expenses of any counsel retained by the
indemnified party. The indemnity and defense provisions set forth herein shall
survive the termination of this Agreement.
6. Compensation.
For the services provided hereunder, BNY agrees to pay BISYS such
compensation at the rate set forth on Exhibit A hereto and such out-of-pocket
expenses (e.g., telecommunication charges, postage and delivery charges, record
retention costs, reproduction charges and transportation and lodging costs) as
are incurred by BISYS in performing its duties hereunder. The rate set forth on
Exhibit A shall be an annual rate of such Fund's average daily net assets.
Except as hereinafter set forth, compensation shall be calculated and accrued
daily and paid monthly. BISYS shall deliver to BNY invoices for services
rendered. 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 BISYS, each Fund's net asset
value shall be computed at the times and in the manner specified in the Fund's
Prospectus.
7. Certain Records.
BISYS shall maintain customary records in connection with its duties as
specified in this Agreement. Any records required to be maintained and preserved
pursuant to Rules 31a-1 and 31a-2 under the 1940 Act which are prepared or
maintained by BISYS on behalf of the Company shall be prepared and maintained at
the expense of BISYS, but shall be the property of the Company and will be
surrendered promptly to the Company on request, and made available for
inspection by the Company or by the SEC at reasonable times.
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BISYS may at its option at any time, and shall promptly upon BNY's demand,
turn over to BNY and cease to retain BISYS' files, records and documents created
and maintained by BISYS pursuant to this Agreement which are no longer needed by
BISYS in the performance of its services or for its legal protection. If not so
turned over to BNY, such documents and records shall be retained by BISYS for
six years from the year of creation. At the end of such six-year period, such
records and documents shall be turned over to BNY unless BNY authorizes in
writing the destruction of such records and documents.
In case of any request or demand for the inspection of such records by
another party, BISYS shall notify BNY and follow BNY's instructions as to
permitting or refusing such inspection; provided that BISYS may exhibit such
records in any case where (i) disclosure is required by law, (ii) BISYS is
advised by counsel that it may incur liability for failure to make a disclosure,
(iii) BISYS is requested to divulge such information by duly-constituted
authorities or court process, or (iv) BISYS is requested to make a disclosure by
BNY. BISYS shall provide BNY with reasonable advance notice of disclosure
pursuant to items (i) - (iii) of the previous sentence, to the extent reasonably
practicable.
8. Term of Agreement.
This Agreement shall continue until terminated by either BNY giving to
BISYS, or BISYS 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, BNY shall pay to BISYS such
compensation as may be due as of the date of such termination, and shall
reimburse BISYS for any disbursements and expenses made or incurred by BISYS and
payable or reimbursable hereunder.
9. Force Majeure.
Provided that a failure or delay in the performance of the BISYS'
obligations hereunder does not arise from the failure to have in place
reasonable backup systems and disaster recovery programs, BISYS shall not be
responsible or liable for any such failure or delay in the performance of its
obligations under this Agreement arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control, including without
limitation, acts of God; earthquakes; fires; floods; wars; civil or military
disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of
utilities, computer (hardware or software) or communications service; accidents;
labor disputes; acts of civil or military authority or governmental actions; it
being understood that BISYS shall use all commercially reasonable efforts to
resume performance as soon as practicable under the circumstances.
10. Amendment.
This Agreement may not be amended or modified in any manner except by a
written agreement executed by BNY and BISYS, and authorized or approved by the
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
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without the written consent of the other party hereto accompanied by the
authorization or approval of the 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 of BNY
and BISYS 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. BNY and BISYS each hereby irrevocably waives any and all rights to
trial by jury in any legal proceeding arising out of or relating to this
Agreement. To the extent that in any jurisdiction either party 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
party 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 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 either party 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 either party to exercise, and no delay in exercising, any right
will operate as a waiver thereof, nor will any single or partial exercise by
such party 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 BISYS, at
BISYS Fund Services Ohio, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: President
if to BNY, at
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attention: Xxxxxx X. XxXxxx,
Managing Director
or at such other place as may from time to time be designated in writing.
Notices hereunder shall be effective upon receipt.
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.
18. Prior Agreements.
This Agreement constitutes the complete agreement of the parties hereto as
to the subject matter covered by this Agreement, and supersedes all prior
negotiations, understandings and agreements bearing upon the subject matter
covered herein, including, without limitation, the Administration Agreement
dated July 31, 1992 between the Company and BISYS, and the Sub-Administration
Agreement dated July 31, 1992 between BISYS and BNY.
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.
BISYS FUND SERVICES OHIO, INC.
By:
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Title:
THE BANK OF NEW YORK
By:
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Title:
EXHIBIT A
(A) BISYS acknowledges that BNY is entitled to an accounting fee of $60,000 per
Fund.
(B) BISYS shall be entitled to 25% of the difference between (i) the aggregate
administration fee payable to BNY pursuant to the Administration Agreement and
(ii) the amount set forth in (A) above.
SCHEDULE I
SUB-ADMINISTRATIVE SERVICES
(a) Provide compliance support and oversight, including compliance testing,
reporting to the Chief Compliance Officer of the Company on compliance
testing, joint regulatory oversight, Board support as requested, oversight
of the Company's transfer agent and distributor, oversight of annual
anti-money laundering review, and support legal administration services as
requested;
(b) Review the daily and monthly Compliance Management Reports including those
from BNY's Post Trade Compliance System (Xxxxxxx River);
(c) Test conformity of compliance restrictions and limitations within the
then-current registration statement, and annually conduct an independent
review of the Compliance Matrix against the investment policies and other
stated policies in the Funds' Registration Statement;
(d) Annually or upon reasonable request, review the investment advisor(s)
Pre-Trade System and Procedures for Manual Tests;
(e) Conduct semi-annual compliance training for Fund portfolio managers;
(f) Provide ongoing consulting to assist BNY with any compliance questions or
issues;
(g) Support BNY's preparation of: (i) the annual update to the Company's
registration statement on Form N-1A, (ii) other amendments to the Company's
registration statement and supplements to its Prospectus and Statement of
Additional Information, and (iii) the holding of Annual or Special Meetings
of shareholders of the Company and preparation of proxy materials relating
thereto, and file any of the foregoing with the SEC upon the request of the
Company or counsel to the Company;
(h) Prepare such reports, applications and documents (including reports
regarding the sale and redemption of shares in the Company as may be
required in order to comply with state securities laws) as may be necessary
or desirable to register the shares in the Company ("Shares") with state
securities authorities, monitor the sale of Shares for compliance with
state securities laws, and file with the appropriate state securities
authorities the registration statements and reports for the Company and the
Shares and all amendments thereto, as may be necessary or convenient to
register and keep effective the registration of the Company and the Shares
with state securities authorities to enable the Company to make a
continuous offering of its Shares. State securities ("Blue Sky") exemption
services are made available at a standard fee which is earned by BISYS
based on savings obtained by the Company;
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(i) Coordinate the distribution of prospectuses, supplements, proxy materials
and reports to Shareholders; and coordinate the solicitation and tabulation
of proxies (including the annual meeting of Shareholders each year, if one
is held);
(j) Assist with the design, development, and operation of the Funds, including
new classes, investment objectives, policies and structure, and provide
consultation related to legal and regulatory aspects of the establishment,
maintenance, and liquidation or dissolution of Funds;
(k) Obtain and maintain fidelity bonds and directors and officers/errors and
omissions insurance policies for the Company in accordance with Rules 17g-1
and 17d-1 under this 1940 Act at the expense (except as otherwise provided
in this Agreement) of the Company and Funds and file the fidelity bonds and
any notices with the SEC as required under the 1940 Act, to the extent such
bonds and policies are approved by the Board;
(l) Maintain corporate records on behalf of the Company, including, but not
limited to, minute books, the Certificate of Incorporation and By-Laws for
the Company;
(m) Manage the preparation process for Board meetings by (i) coordinating Board
book preparation, production and distribution, (ii) subject to review and
approval by the Company and its counsel, preparing Board agendas,
resolutions and minutes, (iii) preparing the relevant sections of the Board
materials required to be prepared by BISYS, (iv) assisting to gather and
coordinate special materials related to annual contract renewals and
approval of rule 12b-1 plans and related matters for and as directed by the
Board or fund counsel, (v) attending Board meetings and recording the
minutes, and (vi) performing such other Board meeting functions as shall be
agreed by the parties in writing;
(n) Prepare and distribute Director/Officer Questionnaires, review completed
Questionnaires and resolve any open issues with the Company and counsel;
(o) Review proxy statements prepared by counsel;
(p) Provide officers of the Company, other than officers required to certify
certain SEC filings under the Xxxxxxxx-Xxxxx Act of 2002;
(q) Prepare and file amendments to the Certificate of Incorporation as
necessary; and
(r) Prepare amendments to the By-Laws.
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SCHEDULE II
FUNDS
Equity and Fixed Income Funds
BNY Xxxxxxxx Equity Income Fund
BNY Xxxxxxxx Large Cap Growth Fund
BNY Xxxxxxxx Small Cap Growth Fund
BNY Xxxxxxxx International Equity Fund
BNY Xxxxxxxx Intermediate Government Fund
BNY Xxxxxxxx Intermediate Investment Grade Fund
BNY Xxxxxxxx Intermediate New York Tax-Exempt Fund
BNY Xxxxxxxx Intermediate Tax-Exempt Fund
XXX Xxxxxxxx Xxxxx Xxx XXX Xxxx
XXX Xxxxxxxx Small Cap CRT Fund
BNY Xxxxxxxx International Equity CRT Fund
BNY Xxxxxxxx Value Fund
BNY Xxxxxxxx US Bond Market Index Fund
BNY Xxxxxxxx S&P Index Fund
BNY Xxxxxxxx Multi Cap Equity Fund
BNY Xxxxxxxx High Yield Fund
BNY Xxxxxxxx Small Cap Core Equity Fund
Money Market and Enhanced Funds
BNY Xxxxxxxx Money Fund
BNY Xxxxxxxx Treasury Money Fund
BNY Xxxxxxxx Enhanced Income Fund
BNY Xxxxxxxx New York Tax-Exempt Money Fund
