FUND ACCOUNTING AGREEMENT
AGREEMENT made as of this 27th day of February, 1998 by and between
FIRST EAGLE TRUST, a Delaware business trust having its principal place of
business at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter
called the "Fund") and The Bank of New York, a New York corporation authorized
to do a banking business, having its principal place of business at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called the "Bank").
W I T N E S S E T H:
In consideration of the mutual agreements herein contained, the Fund
and the Bank hereby agree as follows:
1. The Fund hereby appoints the Bank to perform the duties hereinafter
set forth.
2. The Bank hereby accepts appointment and agrees to perform the duties
hereinafter set forth.
3. Subject to the provisions of paragraphs 5 and 6 below, the Bank
shall compute the net asset value per share of each Series of shares (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.
4. Subject to the provisions of paragraphs 5 and 6 below, the Bank
shall also compute the net income of each Series for dividend purposes and the
net income per share at such times and dates and in the manner specified in the
then currently effective Prospectus of the Fund.
5. To the extent valuation of Securities or computation of a Series'
net asset value, net income for dividend purposes, or net income per share 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, each Series' net asset
value, net income for dividend purposes or net income per share, as the case may
be, or subject to the prior approval of the Bank, instruct the Bank in writing
to value Securities and compute each Series' net asset value, net income for
dividend purposes, and net income per share 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, a Series'
net asset value, net income for dividend purposes, or net income per share in a
manner other than as specified in paragraphs 3 and 4 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, net income for dividend
purposes and net income per share.
6. 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 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
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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.
7. The Bank shall advise the Fund, the Fund's custodian and the Fund's
transfer agent of the net asset value, net income for dividend purposes, and net
income per share of each Series upon completion of the computations required to
be made by the Bank pursuant to this Agreement.
8. 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.
9. 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
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the Fund shall reimburse the Bank for its expenses of providing such hard copy
or micro-film.
10. 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 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.
11. 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 10 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.
12. 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
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will be actually paid, but will accrue such interest until otherwise instructed
by the Fund.
13. 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.
14. 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.
15. 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 rely on the advice or opinion of such counsel. The costs of any such
advice or opinion shall be borne by the Fund.
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16. 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.
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 bad faith, 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.
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 10
hereof or by or on behalf of the Fund;
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(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
bad faith, negligence or willful misconduct;
(c) Any action taken or omitted to be taken by the Bank in
good faith in 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, net income for dividend purposes, and
net income per share; or
(f) Any valuations of Securities, net asset value, net income
for dividend purposes, or net income per share provided by the Fund.
19. 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.
20. Attached hereto as Appendix B is a list of persons duly authorized
by the Fund's Declaration of Trust 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.
21. The Fund represents and warrants to the Bank that it has all
requisite power to execute and deliver this Agreement,
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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.
22. Unless The Bank of New York is acting as the sole custodian for the
Fund, on each day on which the Bank is to make calculations hereunder, the Fund
shall deliver to the Bank, at least one-half hour before the Bank is to make any
such calculations, a signed written specification of the Securities of each
Series. The Bank shall be entitled to rely on such specifications in making its
calculations hereunder for such day. If The Bank of New York is acting as the
sole custodian for the Fund, the Bank shall be entitled to rely on
specifications of Securities furnished by The Bank of New York as custodian.
23. 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.
24. 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.
25. This Agreement may not be amended or modified in any manner except
by written agreement executed on behalf of both parties hereto.
26. This Agreement is executed in the State of New York and all laws
and rules of construction of the State of New York
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(other than those relating to choice of laws) shall govern the rights, duties
and obligations of the parties hereto.
27. 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.
FIRST EAGLE TRUST
By: /s/ Xxxxxx Xxxxx
_______________________
Attest:
_______________________
THE BANK OF NEW YORK
By: /s/ XXXXXXX X. GRUNSTON
_______________________
Xxxxxxx X. Grunston
Vice President
Attest:
/s/ [ILLEGIBLE]
_______________________
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APPENDIX A TO FUND ACCOUNTING AGREEMENT
BETWEEN
THE BANK OF NEW YORK
AND
FIRST EAGLE TRUST
I. The Bank of New York (the "Bank"), as agent for FIRST EAGLE TRUST
(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
3. Net income of the Fund for dividend purposes
4. Net income per share
5. Yield of the Fund
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 FIRST EAGLE TRUST, 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 Trustees of
the Fund to each such position and qualified therefor in conformity with the
Fund's Declaration of Trust 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
____________________ ___________________ _________________
