INVESTMENT ACCOUNTING AGREEMENT
THIS AGREEMENT made the 17th day of November, 2000, by and between
STATE STREET BANK AND TRUST COMPANY, a trust company chartered under the laws of
the state of Massachusetts, having its trust office located at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("State Street"), and FIRST EAGLE SOGEN
FUNDS, INC., a Maryland corporation, having its principal office and place of
business at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Fund").
WITNESSETH:
WHEREAS, the Fund desires to appoint State Street as its agent to
perform certain investment accounting and recordkeeping functions for the assets
of the Fund's investment portfolio or portfolios (each a "Portfolio", and
collectively the "Portfolios"); and
WHEREAS, State Street is willing to accept such appointment on the
terms and conditions hereinafter set forth;
NOW THEREFORE, for and in consideration of the mutual promises
contained herein, the parties hereto, intending to be legally bound, mutually
covenant and agree as follows:
1. APPOINTMENT OF AGENT. The Fund hereby constitutes and appoints State Street
as its agent to perform certain accounting and recordkeeping functions relating
to portfolio transactions required of a duly registered investment company under
Rule 31a of the Investment Company Act of 1940 (the "1940 Act") and to calculate
the net asset value of the Portfolios.
2. REPRESENTATIONS AND WARRANTIES.
A. Fund hereby represents, warrants and acknowledges to State Street:
1. That it is a corporation duly organized and existing and in good
standing under the laws of its state of organization, and that it
is registered under the 1940 Act; and
2. That it has the requisite power and authority under applicable
law, its articles of incorporation and its bylaws to enter into
this Agreement; that it has taken all requisite action necessary
to appoint State Street as investment accounting and
recordkeeping agent for the Fund; that this Agreement has been
duly executed and delivered by the Fund; and that this Agreement
constitutes a legal, valid and binding obligation of the Fund,
enforceable in accordance with its terms.
B. State Street hereby represents, warrants and acknowledges to the Fund:
1. That it is a trust company duly organized and existing and in
good standing under the laws of the Commonwealth of
Massachusetts; and
2. That it has the requisite power and authority under applicable
law, its charter and its bylaws to enter into and perform this
Agreement; that this Agreement has been duly executed and
delivered by State Street; and that this Agreement constitutes a
legal, valid and binding obligation of State Street, enforceable
in accordance with its terms.
3. DUTIES AND RESPONSIBILITIES OF THE PARTIES.
A. Delivery of Accounts and Records. The Fund shall turn over or cause to
be turned over to State Street all of the Fund's relevant accounts and
records previously maintained. State Street shall be entitled to rely
conclusively on the completeness and correctness of the accounts and
records turned over to it, and the Fund shall indemnify and hold State
Street harmless of and from any and all expenses, damages and losses
whatsoever arising out of or in connection with any error, omission,
inaccuracy or other deficiency of such accounts and records or in the
failure of the Fund to provide, or to provide in a timely manner, any
accounts, records or information needed by the State Street to perform
its functions hereunder.
B. Accounts and Records. State Street will prepare and maintain, with the
direction and as interpreted by the Fund, the Fund's accountants and/or
other advisors, in complete, accurate and current form all accounts and
records (i) required to be maintained by the Fund with respect to
portfolio transactions under Rule 31a of the 1940 Act, (ii) required to
be maintained as a basis for calculation of the Fund's net asset value,
and (iii) as otherwise agreed upon between the parties. State Street
will preserve said records in the manner and for the periods prescribed
in the 1940 Act or for such longer period as is agreed upon by the
parties. State Street relies upon the Fund to furnish, in writing or
its electronic or digital equivalent, accurate and timely information
needed by State Street to complete the Fund's records and perform daily
calculation of the Fund's net asset value. State Street shall incur no
liability and the Fund shall indemnify and hold harmless State Street
from and against any liability arising from any failure of the Fund to
furnish such information in a timely and accurate manner, even if the
Fund subsequently provides accurate but untimely information. It shall
be the responsibility of the Fund to furnish State Street with the
declaration, record and payment dates and amounts of any dividends or
income and any other special actions required concerning each of its
securities when such information is not readily available from
generally accepted securities industry services or publications.
C. Accounts and Records Property of Fund. State Street acknowledges that
all of the accounts and records maintained by State Street pursuant to
this Agreement are the property of Fund, and will be made available to
the Fund for inspection or reproduction within a reasonable period of
time, upon demand. State Street will
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assist the Fund's independent auditors, or upon approval of the Fund,
or upon demand, any regulatory body, in any requested review of the
Fund's accounts and records but shall be reimbursed by the Fund for
all expenses and employee time invested in any such review outside of
routine and normal periodic reviews. Upon receipt from the Fund of the
necessary information or instructions, State Street will supply
information from the books and records it maintains for the Fund that
the Fund needs for tax returns, questionnaires, periodic reports to
shareholders and such other reports and information requests as the
Fund and State Street shall agree upon from time to time.
D. Adoption of Procedures State Street and the Fund may from time to time
adopt procedures as they agree upon, and State Street may conclusively
assume that no procedure approved or directed by the Fund or its
accountants or other advisors conflicts with or violates any
requirements of its prospectus, articles of incorporation, bylaws, any
applicable law, rule or regulation, or any order, decree or agreement
by which the Fund may be bound. The Fund will be responsible to notify
State Street of any changes in statutes, regulations, rules,
requirements or policies which might necessitate changes in State
Street's responsibilities or procedures.
E. Calculation of Net Asset Value. State Street will calculate the Fund's
net asset value, in accordance with the Fund's prospectus. State Street
will price the securities and foreign currency holdings of the Fund for
which market quotations are available by the use of outside services
designated by the Fund which are normally used and contracted with for
this purpose; all other securities and foreign currency holdings will
be priced in accordance with the Fund's instructions. State Street will
have no responsibility for the accuracy of the prices quoted by these
outside services or for the information supplied by the Fund or for
acting upon such instructions.
4. INSTRUCTIONS.
A. The term "instructions," as used herein, means written (including
telecopied or telexed) or oral instructions which State Street
reasonably believes were given by a designated representative of the
Fund. Written instructions or written confirmation of oral instructions
shall be signed by two designated representatives. The Fund shall
deliver to State Street, upon execution hereof and thereafter from time
to time as changes therein are necessary, written instructions naming
one or more designated representatives to give instructions in the name
and on behalf of the Fund, which instructions may be received and
accepted by State Street as conclusive evidence of the authority of any
designated representative to act for the Fund and may be considered to
be in full force and effect (and State Street will be fully protected
in acting in reliance thereon) until receipt by State Street of notice
to the contrary. Unless such written instructions delegating authority
to any person to give instructions specifically limit such authority to
specific matters or require that the approval of anyone else will first
have been obtained, State Street will be under no obligation to inquire
into the right of such person to give any instructions whatsoever which
State Street may receive from such person. If the Fund fails to provide
State Street any such instructions naming designated representatives,
any instructions received by State Street from a person reasonably
believed to be an appropriate
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representative of the Fund shall constitute valid and proper
instructions hereunder. "Designated representatives" of the Fund may
include its employees and agents, including investment managers and
their employees.
B. No later than the next business day immediately following each oral
instruction, the Fund will send State Street written confirmation of
such oral instruction. At State Street's sole discretion, State Street
may record on tape, or otherwise, any oral instruction whether given in
person or via telephone, each such recording identifying the date and
the time of the beginning and ending of such oral instruction.
C. The Fund acknowledges that State Street has developed proprietary
accounting and other systems, and has acquired licenses for other such
systems, which it utilizes in conjunction with the services it provides
to the Fund (the "Systems"). In this regard, State Street maintains
certain information in databases under its control and ownership that
its makes available on a remote basis to its customers (the "Remote
Access Services"). If State Street shall provide the Fund direct access
to the Systems or if State Street and the Fund shall agree to utilize
any Remote Access Services, the Fund shall be fully responsible for any
and all consequences of the use or misuse of the terminal device,
passwords, access instructions and other means of access to such
Systems which are utilized by, assigned to or otherwise made available
to the Fund. The Fund agrees to implement and enforce appropriate
security policies and procedures to prevent unauthorized or improper
access to or use of such Systems. State Street shall be fully protected
in acting hereunder upon any instructions, communications, data or
other information received by State Street by such means as fully and
to the same effect as if delivered to State Street by written
instrument signed by the requisite authorized representative(s) of the
Fund. The Fund shall indemnify and hold State Street harmless from and
against any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability which may be suffered or incurred by
State Street as a result of the use or misuse, whether authorized or
unauthorized, of any such Systems by the Fund or by any person who
acquires access to such Systems through the terminal device, passwords,
access instructions or other means of access to such Systems which are
utilized by, assigned to or otherwise made available to the Fund,
except to the extent attributable to any negligence or willful
misconduct by State Street.
5 LIMITATION OF LIABILITY OF STATE STREET.
A. State Street shall at all times use reasonable care and due diligence
and act in good faith in performing its duties under this Agreement.
State Street shall not be responsible for, and the Fund shall indemnify
and hold State Street harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability
which may be asserted against State Street, incurred by State Street or
for which State Street may be held to be liable, arising out of or
attributable to:
1. All actions taken by State Street pursuant to this Agreement or
any instructions provided to it hereunder, provided that State
Street has acted in good faith and with due diligence and
reasonable care; and
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2. The Fund's refusal or failure to comply with the terms of this
Agreement (including without limitation the Fund's failure to pay
or reimburse State Street under this indemnification provision),
the Fund's negligence or willful misconduct, or the failure of
any representation or warranty of the Fund hereunder to be and
remain true and correct in all respects at all times.
B. State Street may request and obtain at the expense of the Fund the
advice and opinion of counsel for the Fund or of its own counsel with
respect to questions or matters of law, and it shall be without
liability to the Fund for any action taken or omitted by it in good
faith, in conformity with such advice or opinion. If State Street
reasonably believes that it could not prudently act according to the
instructions of the Fund or the Fund's accountants or counsel, it may
in its discretion, with notice to the Fund, not act according to such
instructions.
C. State Street may rely upon the advice and statements of the Fund, the
Fund's accountants and officers or other authorized individuals, and
other persons believed by it in good faith to be expert in matters upon
which they are consulted, and State Street shall not be liable for any
actions taken, in good faith, upon such advice and statements.
D. If the Fund requests State Street in any capacity to take any action
which involves the payment of money by State Street, or which might
make it or its nominee liable for payment of monies or in any other
way, State Street shall be indemnified and held harmless by the Fund
against any liability on account of such action; provided, however,
that nothing herein shall obligate State Street to take any such action
except in its sole discretion.
E. State Street shall be protected in acting hereunder upon any
instructions, advice, notice, request, consent, certificate or other
instrument or paper appearing to it to be genuine and to have been
properly executed. State Street shall be entitled to receive upon
request as conclusive proof of any fact or matter required to be
ascertained from the Fund hereunder a certificate signed by an officer
or designated representative of the Fund. The Fund shall also provide
State Street instructions with respect to any matter concerning this
Agreement requested by State Street.
F. State Street shall not be responsible or liable for the failure or
delay in performance of its obligations under this Agreement, or those
of any entity for which it is responsible hereunder, arising out of or
caused, directly or indirectly, by circumstances beyond the affected
entity's reasonable control, including, without limitation: any
interruption, loss or malfunction of any utility, transportation,
computer (hardware or software) or communication service; inability to
obtain labor, material, equipment or transportation, or a delay in
mails; governmental or exchange action, statute, ordinance, rulings,
regulations or direction; war, strike, riot, emergency, civil
disturbance, terrorism, vandalism, explosions, labor disputes, freezes,
floods, fires, tornados, acts of God or public enemy, revolutions, or
insurrection.
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G. EXCEPT FOR VIOLATIONS OF SECTION 9, IN NO EVENT AND UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY TO THIS AGREEMENT BE LIABLE TO ANYONE,
INCLUDING, WITHOUT LIMITATION TO THE OTHER PARTY, FOR CONSEQUENTIAL,
SPECIAL OR PUNITIVE DAMAGES FOR ANY ACT OR FAILURE TO ACT UNDER ANY
PROVISION OF THIS AGREEMENT EVEN IF ADVISED OF THIS POSSIBILITY
THEREOF.
6 COMPENSATION. In consideration for its services hereunder as investment
accounting. recordkeeping, the Fund will pay to State Street such
compensation as shall be set forth in a separate fee schedule to be agreed
to by the Fund and State Street from time to time. The initial fee schedule
is attached hereto as Exhibit A. State Street shall also be entitled to
receive, and the Fund agrees to pay to State Street, on demand,
reimbursement for State Street's cash disbursements and reasonable
out-of-pocket costs and expenses, including attorney's fees, incurred by
State Street in connection with the performance of services hereunder.
7 TERM AND TERMINATION. The initial term of this Agreement shall be for a
period of one (1) year. Thereafter, either party to this Agreement may
terminate the same by notice in writing, delivered or mailed, postage
prepaid, to the other party hereto and received not less than ninety (90)
days prior to the date upon which such termination will take effect. Upon
termination of this Agreement, the Fund will pay State Street its fees and
compensation due hereunder and its reimbursable disbursements, costs and
expenses paid or incurred to such date and the Fund shall designate a
successor investment accounting and recordkeeping agent (which may be the
Fund) by notice in writing to State Street by the termination date. In the
event no written notice designating a successor has been delivered to State
Street on or before the date when such termination becomes effective, then
State Street may, at its option, deliver the accounts and records to the
Fund. Upon delivery to a successor , State Street will have no further
obligations or liabilities under this Agreement.
8 NOTICES. Notices, requests, instructions and other writings addressed to the
Fund at 1345 Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or at such
other address as the Fund may have designated to State Street in writing,
will be deemed to have been properly given to the Fund hereunder; and
notices, requests, instructions and other writings addressed to State Street
at its offices at 000 Xxxxxxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000,
Attention: Investment Accounting Department, or to such other address as it
may have designated to the Fund in writing, will be deemed to have been
properly given to State Street hereunder.
9 CONFIDENTIALITY.
A. The Fund shall preserve the confidentiality of the Systems and the
tapes, books, reference manuals, instructions, records, programs,
documentation and information of, and other materials relevant to, the
Systems and the business of State Street ("Confidential Information").
The Fund agrees that it will not voluntarily disclose any such
Confidential Information to any other person other than its own
employees who reasonably have a need to know such information pursuant
to this Agreement. The Fund shall return all such Confidential
Information to State Street upon termination or expiration of this
Agreement.
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B. The Fund has been informed that the Systems are either owned by or are
licensed for use by State Street from a third party ("Licensor"), and
the Fund acknowledges that State Street and Licensor, if applicable,
have proprietary rights in and to the Systems and all other State
Street or Licensor programs, code, techniques, know-how, data bases,
supporting documentation, data formats, and procedures, including
without limitation any changes or modifications made at the request or
expense or both of the Fund (collectively, the "Protected
Information"). The Fund acknowledges that the Protected Information
constitutes confidential material and trade secrets of State Street and
Licensor, if applicable. The Fund shall preserve the confidentiality of
the Protected Information, and the Fund hereby acknowledges that any
unauthorized use, misuse, disclosure or taking of Protected
Information, residing or existing internal or external to a computer,
computer system, or computer network, or the knowing and unauthorized
accessing or causing to be accessed of any computer, computer system,
or computer network, may be subject to civil liabilities and criminal
penalties under applicable law. The Fund shall so inform employees and
agents who have access to the Protected Information or to any computer
equipment capable of accessing the same. Licensor is intended to be and
shall be a third party beneficiary of the Fund's obligations and
undertakings contained in this paragraph.
10 MULTIPLE PORTFOLIOS. If the Fund is comprised of more than one Portfolio:
A. Each Portfolio shall be regarded for all purposes hereunder as a
separate party apart from each other Portfolio. Unless the context
otherwise requires, with respect to every transaction covered by this
Agreement, every reference herein to the Fund shall be deemed to relate
solely to the particular Portfolio to which such transaction relates.
Under no circumstances shall the rights, obligations or remedies with
respect to a particular Portfolio constitute a right, obligation or
remedy applicable to any other Portfolio. The use of this single
document to memorialize the separate agreement of each Portfolio is
understood to be for clerical convenience only and shall not constitute
any basis for joining the Portfolios for any reason.
B. Additional Portfolios may be added to this Agreement, provided that
State Street consents to such addition. Rates or charges for each
additional Portfolio shall be as agreed upon by State Street and the
Fund in writing.
11 MISCELLANEOUS.
A. This Agreement shall be construed according to, and the rights and
liabilities of the parties hereto shall be governed by, the laws of the
Comonwealth of Massachusetts, without reference to the choice of laws
principles thereof.
B. All terms and provisions of this Agreement shall be binding upon, inure
to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
C. The representations and warranties, the indemnifications extended
hereunder, and the provisions of Section 9 hereof are intended to and
shall continue after and survive the expiration, termination or
cancellation of this Agreement.
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D. No provisions of the Agreement may be amended or modified in any manner
except by a written agreement properly authorized and executed by each
party hereto.
E. The failure of either party to insist upon the performance of any terms
or conditions of this Agreement or to enforce any rights resulting from
any breach of any of the terms or conditions of this Agreement,
including the payment of damages, shall not be construed as a
continuing or permanent waiver of any such terms, conditions, rights or
privileges, but the same shall continue and remain in full force and
effect as if no such forbearance or waiver had occurred. No waiver,
release or discharge of any party's rights hereunder shall be effective
unless contained in a written instrument signed by the party sought to
be charged.
F. The captions in the Agreement are included for convenience of reference
only, and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
G. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
H. If any provision of this Agreement shall be determined to be invalid or
unenforceable, the remaining provisions of this Agreement shall not be
affected thereby, and every provision of this Agreement shall remain in
full force and effect and shall remain enforceable to the fullest
extent permitted by applicable law.
I. This Agreement may not be assigned by either party hereto without the
prior written consent of the other party.
J. Neither the execution nor performance of this Agreement shall be deemed
to create a partnership or joint venture by and between State Street
and the Fund.
K. This Agreement supercedes the Custody Agreement previously entered into
by the parties hereto dated September 1, 1993. Except as specifically
provided herein, this Agreement does not in any way affect any other
agreements entered into among the parties hereto and any actions taken
or omitted by either party hereunder shall not affect any rights or
obligations of the other party hereunder.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers.
STATE STREET BANK AND TRUST COMPANY
By:
Title:
FIRST EAGLE SOGEN FUNDS, INC.
By:
Title:
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