EXHIBIT 23h(5). - FORM OF FUND ACCOUNTING AGREEMENT
FUND ACCOUNTING AGREEMENT
AGREEMENT, dated as of ________, 2001, between NYLIM INSTITUTIONAL
FUNDS, a business trust organized and existing under the laws of the State of
Delaware having its principal office and place of business at 000 Xxxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Fund") and THE BANK OF NEW YORK, a
New York corporation authorized to do a banking business having its principal
office and place of business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter called the "Bank").
W I T N E S S E T H:
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In consideration of the mutual agreements herein contained, the Fund
and the Bank hereby agree as follows:
Section 1. The Fund hereby appoints the Bank to perform the duties
hereinafter set forth.
Section 2. The Bank hereby accepts appointment and agrees to perform
the duties hereinafter set forth.
Section 3. Subject to the provisions of paragraphs 4 and 5 below, the
Bank shall compute the net asset value per share of each Series of shares listed
on Schedule I hereto (the "Series") of the Fund and shall value the securities
held by the Fund (the "Securities") at such times and dates and in the manner
specified in the then currently effective Prospectus of the Fund.
Section 4. To the extent valuation of Securities or computation of a
Series' 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 the Bank in writing and thereafter shall
either furnish the Bank at all appropriate times with the values of such
Securities and each Series' net asset value, or subject to the prior approval of
the Bank, instruct the Bank in writing to value Securities and compute each
Series' 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 the Bank, instruct the Bank in
writing to compute the value of the Securities or a Series' net asset value in a
manner other than as specified in paragraph 3 of this Agreement. 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
each Series' net asset value.
Section 5. The Fund shall furnish the Bank with any and all
instructions,
explanations, information, specifications and documentation deemed necessary by
the Bank 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. The Bank 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 the Bank the precise amount of the same to be included
in liabilities and expenses or used to reduce net asset value. The Fund shall
also furnish the Bank with bid, offer, or market values of Securities if the
Bank notifies the Fund that same are not available to the Bank from a security
pricing or similar service utilized, or subscribed to, by the Bank which the
Bank 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 the Bank with bid, offer, or market values of Securities and instruct
the Bank to use such information in its calculations hereunder. The Bank shall
at no time be required or obligated to commence or maintain any utilization of,
or subscriptions to, any securities pricing or similar service.
Section 6. The Bank shall advise the Fund, the Fund's custodian and
the Fund's transfer agent of the net asset value of each Series upon completion
of the computations required to be made by the Bank pursuant to this Agreement.
Section 7. The Bank shall, as agent for the Fund, maintain and keep
current the books, accounts and other documents, if any, listed in Appendix A
hereto and made a part hereof, as such Appendix A may be amended from time to
time, and preserve any such books, accounts and other documents in accordance
with the applicable provisions of Rule 31a-2 of the General Rules and
Regulations under the Investment Company Act of 1940, as amended (the "Rules").
Such books, accounts and other documents shall be made available upon reasonable
request for inspection by officers, employees and auditors of the Fund during
the Bank's normal business hours.
Section 8. All records maintained and preserved by the Bank pursuant
to this Agreement which the Fund is required to maintain and preserve in
accordance with the above-mentioned Rules shall be and remain the property of
the Fund and shall be surrendered to the Fund promptly upon request in the form
in which such records have been maintained and preserved. Upon reasonable
request of the Fund, the Bank shall provide in hard copy or on micro-film,
whichever the Bank shall elect, any records included in any such delivery which
are maintained by the Bank on a computer disc, or are similarly maintained, and
the Fund shall reimburse the Bank for its expenses of providing such hard copy
or micro-film.
Section 9. 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 the 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
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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 the Fund. In the event
the Bank'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 the Bank which the Bank in its
judgment deems reliable, the Bank 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.
Section 10. The Bank shall not be required to inquire into any
valuation of Securities or other assets by the Fund or any third party described
in preceding paragraph 9 hereof, even though the Bank 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.
Section 11. The Bank, in performing the services required of it under
the terms of this Agreement, shall not be responsible for determining whether
any interest accruable to the Fund is or will be actually paid, but will accrue
such interest until otherwise instructed by the Fund.
Section 12. The Bank 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, communication or power
supply, or other similar circumstances. Nor shall the Bank 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 the Bank to supply any instructions, explanations,
information, specifications or documentation deemed necessary by the Bank in the
performance of its duties under this Agreement.
Section 13. No provision of this Agreement shall prevent the Bank from
offering services similar or identical to those covered by this Agreement to any
other corporations, associations or entities of any kind. Any and all
operational procedures, techniques and devices developed by the Bank in
connection with the performance of its duties and obligations under this
Agreement, including those developed in conjunction with the Fund, shall be and
remain the property of the Bank, and the Bank shall be free to employ such
procedures, techniques and devices in connection with the performance of any
other contract with any other person whether or not such contract is similar or
identical to this Agreement.
Section 14. The Bank may, with respect to questions of law, apply to
and obtain the advice and opinion of counsel to the Fund or its own counsel and
shall be entitled to
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rely on the advice or opinion of such counsel. The costs of any such advice or
opinion shall be borne by the Fund.
Section 15. The Bank shall be entitled to rely upon any oral
instructions received by the Bank and reasonably believed by the Bank to be
given by or on behalf of the Fund, even if the Bank subsequently receives
written instructions contradicting such oral instructions. The books and records
of the Bank with respect to the content of any oral instruction shall be binding
and conclusive.
Section 16. Notwithstanding any other provision contained in this
Agreement, the Bank 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, the Fund; (b) the taxable nature or effect on the
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 the 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.
Section 17. The Bank 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. In no event shall the Bank be liable to the
Company or any third party for special, indirect, or consequential damages, or
for 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.
Section 18. Without limiting the generality of the foregoing, the Fund
shall indemnify the Bank against and save the Bank 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:
(a) 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 in preceding paragraph 9 hereof or by or on
behalf of the Fund;
(b) Action or inaction taken or omitted to be taken by the Bank
pursuant to written or oral instructions of the Fund or otherwise without gross
negligence or willful misconduct;
(c) Any action taken or omitted to be taken by the Bank in good faith
in
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accordance with the advice or opinion of counsel for the Fund or its own
counsel;
(d) Any improper use by the Fund or its agents, distributor or
investment advisor of any valuations or computations supplied by the Bank
pursuant to this Agreement;
(e) The method of valuation of the Securities and the method of
computing each Series' net asset value; or
(f) Any valuations of Securities or net asset value provided by the
Fund. In consideration for all of the services to be performed by the Bank as
set forth herein the Bank shall be entitled to receive reimbursement for all
out-of-pocket expenses and such compensation as may be agreed upon in writing
from time to time between the Bank and the Fund.
Section 19. Attached hereto as Appendix B is a list of persons duly
authorized by the Fund's Articles of Incorporation and By-Laws to execute this
Agreement and give any written or oral instructions, or written or oral
specifications, by or on behalf of the Fund. From time to time the Fund may
deliver a new Appendix B to add or delete any person and the Bank shall be
entitled to rely on the last Appendix B actually received by the Bank.
Section 20. The Fund represents and warrants to the Bank that it has
all requisite power to execute and deliver this Agreement, to give any written
or oral instructions contemplated hereby, and to perform the actions or
obligations contemplated to be performed by it hereunder, and has taken all
necessary action to authorize such execution, delivery, and performance.
Section 21. This Agreement shall not be assignable by the Fund without
the prior written consent of the Bank, or by the Bank without the prior written
consent of the Fund.
Section 22. Either of the parties hereto may terminate this Agreement
by giving the other party a notice in writing specifying the date of such
termination, which shall not be less than ninety (90) days after the date of
giving of such notice. Upon the date set forth in such notice, the Bank shall
deliver to the Fund all records then the property of the Fund and, upon such
delivery, the Bank shall be relieved of all duties and responsibilities under
this Agreement.
Section 23. This Agreement may not be amended or modified in any
manner except by written agreement executed on behalf of both parties hereto.
Section 24. This Agreement is executed in the State of New York and
all laws and rules of construction of the State of New York (other than those
relating to choice of laws) shall govern the rights, duties and obligations of
the parties hereto. The Fund and the Bank hereby consent to the exclusive
jurisdiction of a state or federal courts situated in New York City, New York in
connection with any dispute arising hereunder. The Fund hereby irrevocably
waives, to the fullest extent permitted by applicable law, any
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objection which it may now or hereafter have to the laying of venue of any such
preceding brought in such a court and any claim that such proceeding brought in
such a court has been brought in an inconvenient form. The Fund and the Bank
each hereby irrevocably waives any and all rights to trial by jury in any legal
proceeding arising out of or relating to this Agreement.
Section 25. The performance and provisions of this Agreement are
intended to benefit only the Bank and the Fund, and no rights shall be granted
to any other person by virtue of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
NYLIM INSTITUTIONAL FUNDS
By: ----------------------------
Attest:
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THE BANK OF NEW YORK
By: ----------------------------
Attest:
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APPENDIX A TO FUND ACCOUNTING AGREEMENT
BETWEEN
THE BANK OF NEW YORK
AND
NYLIM INSTITUTIONAL FUNDS
(i)______The Bank of New York (the "Bank"), as agent for NYLIM
Institutional Funds (the "Fund"), 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)_____The Bank 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)____The Bank 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, the Bank 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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APPENDIX B
I, ---------------, of NYLIM Institutional Funds, a Delaware business
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 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
------------------- ------------------- -------------------
SCHEDULE I
SERIES
NYLIM Institutional Prime Cash Fund
NYLIM Institutional U.S. Government Cash Fund
NYLIM Institutional Treasury Cash Fund
