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EXHIBIT 23h(1) - FORM OF ADMINISTRATION AND FUND ACCOUNTING AGREEMENT
ADMINISTRATION AND 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 (the "BNY").
W I T N E S S E T H :
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:
Section 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.
Section 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
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(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 or net asset
value, 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 in a manner
the Fund species 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.
Section 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");
(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.
Section 4. Duties and Obligations of BNY.
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(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.
(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 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
without negligence or willful 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,
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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 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 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 it 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
Schedules I and II 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 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
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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.
Section 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, 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.
Section 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,
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except those costs, expenses, damages, liabilities or claims arising out of
BNY's own gross negligence or willful 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 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.
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(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 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,
Section 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.
Section 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 either
its custody agreement or fund accounting agreement with The Bank of New York, or
fail to perform its obligations hereunder in a material respect.
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Section 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.
Section 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.
Section 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.
Section 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 front suit, execution, attachment
(before or after judgment) or other legal process, such Fund irrevocably agrees
not to claim, and it hereby waives, such immunity.
Section 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,
Section 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
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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.
Section 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 nay from time to time be designated in writing.
Notices hereunder shall be effective upon receipt.
Section 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.
Section 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:
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on behalf of each Fund
identified on Exhibit A
attached hereto
THE BANK OF NEW YORK
By:
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Title:
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EXHIBIT A
Name of Funds
New York Life Investment Management Institutional Prime Cash Fund
New York Life Investment Management Institutional U.S. Government Cash Fund
New York Life Investment Management Treasury Cash Fund
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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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FUND ACCOUNTING/ADMINISTRATION FEE SCHEDULE
FOR
NEW YORK LIFE INVESTMENT MANAGEMENT INSTITUTIONAL FUNDS
2.90 basis points per annum on the average net assets of each Fund.
MINIMUMS
$10,000 monthly minimum fee per Fund, waived for the first twelve (12) months.
ADDITIONAL CHARGES
The cost of obtaining prices will be in addition to the fees quoted above.
NEW YORK LIFE INVESTMENT MANAGEMENT THE BANK OF NEW YORK
INSTITUTIONAL FUNDS
Approved by: Submitted by:
Date: Date:
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FUND ACCOUNTING/ADMINISTRATION SERVICES
FOR
NEW YORK LIFE INVESTMENT MANAGEMENT INSTITUTIONAL FUNDS
- Daily
Process investment transactions
Process shareholder activity
Process cash
Calculate and distribute daily distribution rate and NAV
Calculate and distribute performance information
7 Day Yield
Average Days to Maturity
- Weekly
Xxxx to Market Portfolio
- Monthly
2a-7 Compliance
30 Day Yield
Monthly Dividend Cost Reconciliation
Realized Gain/Loss Reconciliation
Capital Stock Reconciliation
Expense Reconciliation
Interest Reconciliation
- Surveys
- Semi-Annual/Annual
Prepare full draft financial statements Semi-Annual and Annual
Prepare N-SAR for filing
