AMENDMENT
AMENDMENT made as of this 18th day of January, 1996 to that
certain custody agreement dated March 19, 1987 (the "Custody
Agreement") between The Bank of New York as custodian (the
"Custodian") and First Eagle Fund of America, Inc. ("the "Fund"), (a
corporation organized and existing under the laws of the State of
Maryland).
WHEREAS, the Custodian and Fund have previously entered into
a Custody Agreement;
WHEREAS, the Fund and the Custodian desire to amend the Custody
Agreement to provide for the electronic transmission of instructions
from the Fund to the Custodian; and
WHEREAS, the Board of (Directors)(Trustees) of the Fund has
approved the amendment of the Custody Agreement as hereinafter
set forth;
NOW, THEREFORE, in consideration for the mutual promises set
forth, the Fund and the Custodian agree to amend the Custody
Agreement as follows:
1. The definition of the term "Certificate" in Article I
is hereby amended to read in its entirety as follows:
"Certificate" shall mean any notice, instruction, or any
other instrument in writing, authorized or required by
this Agreement to be given to the Custodian which is
actually received by the Custodian and signed on behalf
of the Fund by any two officers, and the term Certificate
shall also include instructions by the Fund to the
Custodian communicated by a Terminal Link.
2. The definition of the term "Officer" in Article I is
hereby amended to read in its entirety as follows:
"Officer" shall be deemed to include the President, any
Vice President, the Secretary, the Treasurer, the
Controller, any Assistant Secretary, any Assistant
Treasurer, and any other person or persons, whether or
not any such other person is an officer or employee of
the Fund, duly authorized by the Board of (Directors)
(Trustees) of the Fund to execute any Certificate,
instruction, notice or other instrument on behalf of the
Fund and listed in the Certificate annexed
hereto as Appendix B or such other Certificate as may be
received by the Custodian from time to time.
3. Article I is hereby further amended by the addition of
the following defined term:
"Terminal Link" shall mean an electronic data transmission
link between the Fund, an Intermediary (as hereinafter defined),
and the Custodian requiring in connection with each use of the
Terminal Link by or on behalf of the Fund use of an
authorization code provided by the Custodian and at least two
access codes established by the Fund. As used herein the term
"Intermediary" shall mean a third party that maintains a
transmission line to the Custodian and has been selected by the
Fund to receive electronic data transmissions from the Custodian
or the Fund and forward the same to the Fund or the Custodian,
respectively.
4. A new Article shall be added to read in its entirety as
follows:
TERMINAL LINK
1. The Terminal Link shall be utilized by the Fund only
for the purpose of the Fund providing Certificates to the
Custodian with respect to transactions involving Securities or
for the transfer of money to be applied to the payment of
dividends, distributions or redemptions of Fund Shares, and
shall be utilized by the Custodian only for the purpose of
providing notices to the Fund. Such use shall commence only
after the Fund shall have delivered to the Custodian a
Certificate substantially in the form of Appendix 1 and shall
have established access codes and safekeeping procedures to
safeguard and protect the confidentiality and availability of
such access codes and shall have reviewed the safekeeping
procedures established by the Intermediary to assure that
transmissions inputted by the Fund, and only such transmissions,
are forwarded by the Intermediary to the Custodian without any
alteration or omission. Each use of the Terminal Link by the
Fund shall constitute a representation and warranty that the
Terminal Link is being used only for the purposes permitted
hereby, that at least two Officers have each utilized an access
code, that such safekeeping procedures have been established by
the Fund, that the Intermediary has safekeeping procedures
reviewed by the Fund to assure that all transmissions inputted
by the Fund, and only such transmissions, are forwarded by the
Intermediary to the Custodian without any alteration or omission
by the Intermediary, and that such use does not contravene the
Investment Company Act of 1940, as amended, or the rules or
regulations thereunder.
2. The Fund shall obtain and maintain at its own cost and
expense all equipment and services, including, but not limited to
communications services, necessary for it to utilize the Terminal
Link, and the Custodian shall not be responsible for the
reliability or availability of any such equipment or services.
3. The Fund acknowledges that any data bases made available
as part of, or through the Terminal Link and any proprietary
data, software, processes, information and documentation (other
than which are or become part of the public domain or are legally
required to be made available to the public) (collectively, the
"Information"), are the exclusive and confidential property of
the Custodian. The Fund shall, and shall cause others to which it
discloses the Information, including, without limitation the
Intermediary, to keep the Information confidential by using the
same care and discretion it uses with respect to its own
confidential property and trade secrets, and shall neither make
nor permit any disclosure without the express prior written
consent of the Custodian.
4. Upon termination of this Agreement for any reason, the
Fund shall return to the Custodian any and all copies of the
Information which are in the Fund's possession or under its
control, or which the Fund distributed to third parties,
including, without limitation, the Intermediary. The provisions
of this Article shall not affect the copyright status of any of
the Information which may be copyrighted and shall apply to all
Information whether or not copyrighted.
5. The Custodian reserves the right to modify the Terminal
Link from time to time without notice to the Fund or the
Intermediary except that the Custodian shall give the Fund notice
not less than 75 days in advance of any modification which would
materially adversely affect the Fund's operation, and the Fund
agrees that neither the Fund nor the Intermediary shall modify or
attempt to modify the Terminal Link without the Custodian's prior
written consent. The Fund acknowledges that any software or
procedures provided the Fund or the Intermediary as part of the
Terminal Link are the property of the Custodian and, accordingly,
the Fund agrees that any modifications to the Terminal Link,
whether by the Fund, the Intermediary or the Custodian and
whether with or without the Custodian's consent, shall become the
property of the Custodian.
6. Neither the Custodian nor any manufacturers and suppliers
it utilizes or the Fund or the Intermediary utilizes in
connection with the Terminal Link makes any warranties or
representations, express or implied, in fact or in law,
including but not limited to warranties of merchantability and
fitness for a particular purpose.
7. The Fund will cause its officers and employees to treat
the authorization codes and the access codes applicable to
Terminal Link with extreme care, and irrevocably authorizes the
Custodian to act in accordance with and rely on Certificates
received by it through the Terminal Link. The Fund acknowledges
that it is its responsibility to assure that only its officers
and authorized persons of the Intermediary use the Terminal Link
on its behalf, and that the custodian shall not be responsible
nor liable for use of the Terminal Link on the Fund's behalf by
persons other than such persons or Officers, or by only a single
Officer, nor for any alteration, omission, or failure to
promptly forward by the Intermediary.
8(a). Except as otherwise specifically provided in Section
8(b) of this Article, the Custodian shall have no liability for
any losses, damages, injuries, claims, costs or expenses arising
out of or in connection with any failure, malfunction or other
problem relating to the Terminal Link except for money damages
suffered as the direct result of the negligence of the Custodian
in an amount not exceeding for any incident $25,000, provided
however, that the Custodian shall have no liability under this
Section 8 if the Fund fails to comply with the provisions of
Section 10.
8(b). The Custodian's liability for its negligence in
executing or failing to act in accordance with a Certificate
received through Terminal Link shall be only with respect to a
transfer of funds which is not made in accordance with such
Certificate after such Certificate shall have been duly
acknowledged by the Custodian, and shall be contingent upon the
Fund complying with the provisions of Section 10 of this
Article, and shall be limited to (i) restoration of the
principal amount mistransferred, if and to the extent that the
Custodian would be required to make such restoration under
applicable law, and (ii) the lesser of (A) the Fund's actual
pecuniary loss incurred by reason of its loss of use of the
mistransferred funds or the funds which were not transferred, as
the case may be, or (B) compensation for the loss of use of the
mistransferred funds or the funds which were not transferred,
as the case may be, at a rate per annum equal to the average
federal funds rate as computed from the Federal Reserve Bank of
New York's daily determination of the effective rate for
federal funds, for the period during which the Fund has lost use
of such funds. In no event shall the Custodian have any
liability for failing to transfer funds in accordance with a
Certificate received by the Custodian through Terminal Link
other than through the applicable transfer module for the
particular instructions contained in such Certificate.
9. Without limiting the generality of the foregoing, in no
event shall the Custodian or any manufacturer or supplier of its
computer equipment, software or services relating to the
Terminal Link be responsible for any special, indirect,
incidental or consequential damages which the Fund or the
Intermediary may incur or experience by reason of its use of the
Terminal Link, even if the custodian or any manufacturer or
supplier has been advised of the possibility of such damages,
nor with respect to the use of the Terminal Link shall the
Custodian or any such manufacturer or supplier be liable for
acts of God, or with respect to the following to the extent
beyond such person's reasonable control: machine or computer
breakdown or malfunction, interruption or malfunction of
communication facilities, labor difficulties or any other
similar or dissimilar cause.
10. The Fund shall notify the Custodian of any errors,
omissions or interruptions in, or delay or unavailability of,
the Terminal Link as promptly as practicable, and in any event
within 24 hours after the earliest of (i) discovery thereof,
(ii) the business day on which discovery should have occurred
through the exercise of reasonable care, and (iii) in the case
of any error, the date of actual receipt of the earliest notice
which reflects such error, it being agreed that discovery and
receipt of notice may only occur on a business day. The
Custodian shall promptly advise the Fund or the Intermediary
whenever the Custodian learns of any errors, omissions or
interruption in, or delay or unavailability of, the Terminal
Link.
11. The Custodian shall acknowledge to the Fund or to the
Intermediary, by use of the Terminal Link, receipt of each
Certificate the Custodian receives through the Terminal Link,
and in the absence of such acknowledgement the Custodian shall
not be liable for any failure to act in accordance with such
Certificate and the Fund may not claim that such Certificate was
received by the Custodian. Such acknowledgement, which may occur
after the Custodian has acted upon such Certificate, shall be
accomplished on the same day on which such Certificate is
received.
5. References in this Amendment to the Custody Agreement
are to the Custody Agreement as amended hereby.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers, thereunto
duly authorized and their respective seals to be hereto affixed
as of the day and year first above written.
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Grunston
---------------------------------
Title: XXXXXXX X. GRUNSTON
Vice President
[SEAL}
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
FIRST EAGLE FUND OF AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Title: Secretary
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Title: Treasurer
[SEAL}
ATTEST:
/s/ Xxxx X. Xxxxx
----------------------------------
XXXX X. XXXXX
Notary Public, State of New York
No. 49-4911126
Qualified in Richmond County
Commission Expires Nov. 2, 1997
CASH MANAGEMENT AND RELATED SERVICES AGREEMENT dated as of
January 18, 1996 between each mutual fund and/or portfolio series of
each mutual fund listed on Schedule A hereto (each a "Fund",
collectively the "Funds"), and The Bank of New York (the "Bank").
WITNESSETH:
That in consideration of the mutual agreements and covenants
herein contained, the Bank and each Fund hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, unless the context otherwise
requires, the following words shall have the meanings set forth below:
1. "Account Available Balance" shall mean with respect to an
Account for any given day during a calendar month a positive or
negative dollar amount equal to (A) if such day is a Business Day, the
Account Available Balance as of the close of the last preceding
Business Day plus a positive or negative dollar amount equal to the
difference, if any, between the Chargeable Credits with respect to such
day and such Account and the Chargeable Debits with respect to such day
and such Account, and (B) if such day is not a Business Day, the
Account Available Balance as of close of the last preceding Business
Day, except that both (A) and (B) shall be reduced by the United States
Federal Reserve reserve requirements then applicable to the Bank with
respect to such Account. The Account Available Balance of an Account
shall be zero on the date immediately preceding the first date on which
an entry, consisting of either a Chargeable Credit or Chargeable Debit,
is first made to such Account hereunder.
2. "ACCESS" shall mean any on-line communication system
provided by the Bank hereunder whereby either the receiver of such
communication is able to verify by codes or otherwise with a reasonable
degree of certainty the identity of the sender of such communication,
or the sender is required to provide password or other identification
code.
3. "Authorized Person" shall mean either (A) any person duly
authorized by corporate resolutions of the board of directors or board
of trustees of a Fund, as appropriate, to give Oral and/or Written
Instructions on behalf of such Fund, such persons to be designated in a
certificate, substantially in the form of Exhibit A, which contains a
specimen signature of such person, or (B) any person sending or
transmitting any instruction or direction through ACCESS.
4. "Business Day" shall mean any day on which the Federal
Reserve Bank of New York is open for business, except for any such day
on which the Bank is required by law or regulation to be closed, or
elects to be closed.
5. "Calendar Month Earnings Credit" shall mean with respect to
an Account for any calendar month the dollar amount, whether positive
or negative, equal to the sum of the Gross Calendar Month Earnings
Credit with respect to such Account for such calendar month and the
Monthly Overdraft Charges with respect to such Account for such
calendar month.
6. "Chargeable Credits" shall mean with respect to an Account
for any given day during a calendar month a positive amount of dollars
equal to the sum, if any, of (A) the aggregate dollar amount of Federal
Funds credited to such Account by the Bank in accordance with the then
applicable availability schedule of the Federal Reserve Bank of New
York, and (B) the aggregate dollar amount of Bank internal transfers of
Federal Funds to such Account.
7. "Chargeable Debits" shall mean with respect to an Account
for any given day during a calendar month a negative dollar amount
equal to the sum, if any, of (A) the aggregate dollar amount of Federal
Funds relating to such Account charged against the Bank by the Federal
Reserve Bank of New York on or as of such day, and (B) the aggregate
dollar amount of drafts drawn on such Account which are deposited in
the Bank by customers of the Bank on such day, or Bank internal
transfers from, or charges to, such Account.
8. "Daily Earnings" shall mean with respect to an Account for
any day during a calendar month a positive dollar amount equal to the
product of (A) the positive Account Available Balance, if any, of such
Account for such day, multiplied by (B) the Daily Earnings Rate for
such day. The Daily Earnings with respect to an Account for any day
during a calendar month on which the Account Available Balance of such
Account is negative shall be zero.
9. "Daily Earnings Rate" shall mean for any day during a
calendar month one three hundred and sixty-fifth of the 91 day U.S.
Treasury Xxxx discount rate of the Monday auction first preceding such
day (whether or not such day is a Monday, and whether or not such
Monday auction was in the immediately prior month), as such Monday
auction 91 day U.S. Treasury Xxxx discount rate is reported in The Wall
Street Journal.
10. "Daily Overdraft Charges" shall mean with respect to an
Account for any day during any calendar month a negative dollar amount
equal to the product, if any, of (A) the negative Account Available
Balances, if any, with respect to such Account for such day during such
calendar month, multiplied by (B) the Overdraft Rate.
11. "Federal Funds" shall mean immediately available same day
funds.
12. "Gross Calendar Month Earnings Credit" shall mean with
respect to an Account for any calendar month a positive dollar amount
equal to the aggregate sum of the Dally Earnings of such Account for
such calendar month.
13. "Monthly Overdraft Charges" shall mean with respect to an
Account for any calendar month a negative dollar amount equal to the
aggregate sum of the Daily Overdraft Charges with respect to such
Account for such calendar month which have not been previously paid to
the Bank by the Fund to which such Account relates.
14. "Oral Instructions" shall mean verbal instructions actually
received by the Bank from an Authorized Person or from a person
reasonably believed by the Bank to be an Authorized Person.
15. "Overdraft Rate" shall mean with respect to an Account for
any calendar day during any calendar month a rate equal to one three
hundred and sixtieth of the sum of (A) one-half percent, and (B) the
greater of (i) the prime commercial lending rate of The Bank of New
York, as publicly announced to be in effect from time to time, in
effect on such calendar day, and (ii) 6%.
16. "Shareholder" shall mean any record holder of any Shares,
as identified to the Bank from time to time pursuant to this Agreement.
17. "Shares" shall mean all or any part of each class of the
shares of capital stock, beneficial interest, or limited partnership
interest of a Fund, as the case may be, which are authorized and/or
issued from time to time.
18. "Written Instructions" shall mean written instructions
actually received by the Bank from an Authorized Person or from a
person reasonably believed by the Bank to be an Authorized Person by
letter, memorandum, telegram, cable, telex, telecopy facsimie or
through ACCESS.
ARTICLE II
APPOINTMENTS OF BANK REPRESENTATIONS AND WARRANTIES
1. Appointment; Establishment of Accounts. Each Fund hereby
appoints the Bank as its agent for the term of this Agreement to
perform the cash management services set forth herein and in Schedules
I and II attached hereto and made a part hereof (as such Schedules may
be amended or supplemented from time to time by mutual agreement). The
Bank hereby accepts appointment as such agent for each appointing Fund
and agrees to establish and maintain one or more separate accounts with
respect to each Fund (each, an "Account"; collectively, the "Accounts")
in order to receive and disburse money for the purposes set forth in
this Agreement.
2. Representations and Warranties. Each Fund hereby represents
and warrants only as to itself, and not jointly, to the Bank, which
representations and warranties shall be deemed to be continuing and to
be reaffirmed upon delivery to the Bank of any Oral or Written
Instructions, 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 corporate action
and constitutes a valid and legally binding obligation of the Fund
enforceable in accordance with its terms, except to the extent such
enforcement may be limited by general equity principles or bankruptcy
principles; and
(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
3. Board Resolutions. Each Fund shall provide the Bank with a
certified copy of a resolution of the board of directors or board of
trustees of such Fund, as appropriate, appointing the Bank as its agent
to act hereunder and providing for the creation of such Fund's
Account(s) and the execution by such Fund of this Agreement, it being
understood that receipt of the same by the Bank shall be a condition
precedent to the Bank's establishing an Account for such Fund.
ARTICLE III
CASH MANAGEMENT SERVICES
1. Receipt of Money. The Bank shall receive money for credit to
an Account only:
(i) by personal presentment of drafts by a Fund, but not by
a Shareholder of such Fund, at the branch or branches
in Manhattan identified from time to time by the Bank
to such Fund, provided such presentment is in
accordance with the time frames specified by the Bank
to such Fund;
(ii) by mailing of drafts to a post office box designated by
the Bank for such purpose, provided such drafts are
accompanied by a properly completed investment stub;
(iii) by wire transfer to an account maintained at the
Federal Reserve Bank of New York as identified in
writing by the Bank to a Fund;
(iv) by transfer to an account identified in writing by the
Bank to a Fund through the New York Automated Clearing
House;
(v) by transfer from another Account maintained by such
Fund with the Bank under this Agreement;
(vi) by transfer from another account maintained by such
Fund with the Bank, including such Fund's custodian
account under its Custody Agreement with the Bank as
Custodian; and
(vii) by transfer from any other account maintained with the
Bank.
All money received by the Bank shall be credited upon receipt, but
subject to final payment and receipt by the Bank of immediately
available funds, and receipt by the Bank of such forms, documents and
information as are required by the Bank from time to time and received
in the appropriate time frames. The Bank shall be entitled to reverse
any credits previously made to a Fund's Account where money is not
finally collected or where a credit to such Fund's Account was in
error.
2. Disbursement of Money. The Bank shall disburse money
credited to an Account only:
(i) pursuant to Written Instructions of such Fund
transmitted through ACCESS (except as otherwise
provided in Article V, Section 7 hereof), to transfer
funds as directed by such Fund (including transfers
through the Federal Reserve Bank of New York transfer
wire and the New York Automated Clearing House);
(ii) in payment of drafts drawn by an Authorized Person or
Shareholder (as appropriate for the particular
Account), subject to the terms hereof; and
(iii) in payment of charges to such Account representing
amounts payable to the Bank, and chargeable against
such Account, as provided in this Agreement
The Bank shall be required to disburse money in accordance with the
foregoing only insofar as such money is immediately available and on
deposit with the Bank. All instructions directing the disbursement of
money credited to an Account under this Agreement (whether through
ACCESS or by Oral Instructions pursuant to Article V hereof) must
identify an account to which such money shall be transferred, and
include all other information reasonably required by the Bank from time
to time. It is understood and agreed that with respect to any such
instructions, when instructed to credit or pay a party by both name and
a unique numeric or alpha-numeric identifier (e.g., ABA number or
account number), the Bank and any other financial institution
participating in the funds transfer may rely solely on the unique
identifier, even if it identifies a party different than the party
named. Such reliance on a unique identifier shall apply to
beneficiaries named in such instructions as well as any financial
institution which is designated in such instruction to act as an
intermediary in a funds transfer.
3. Redemption Drafts; Shareholder Information. (a) Each Fund
shall be entitled to supply its Shareholders with redemption drafts,
but only in a form and substance agreed to by the Bank. The Bank agrees
to give each Fund sixty (60) days prior notice of any changes to the
form or substance of redemption drafts required by the Bank, provided
that if such change is required by applicable rules or procedures of
the Federal Reserve or any clearinghouse through which such drafts may
be presented, the Bank may as promptly as practicable give such notice
which may be less than sixty (60) days.
(b) Each Fund will promptly furnish to the Bank (i) the name,
mailing address and telephone number of each Shareholder of such Fund,
and (ii) specimen signatures for all individuals authorized to draw
redemption drafts (whether on their own behalf or on behalf of third
parties). Each Fund will promptly advise the Bank of individuals no
longer authorized to draw redemption drafts, and those individuals
newly authorized. Such information shall be provided to the Bank in a
mutually agreed upon format.
4. Redemption Draft Returns. A Fund may give the Bank Oral or
Written Instructions from time to time to return unpaid redemption
drafts of the Fund to the presenting financial institution for any
reason, and the Bank shall use reasonable efforts to comply with such
Oral or Written Instructions provided that any such compliance would
not prejudice or impair any rights or privileges of the Bank under
prevailing draft return procedures and would not be contrary to
prevailing industry rules, procedures, customs or practices.
Notwithstanding the foregoing, or any other provision in this Agreement
or the Schedules hereto, the Bank (i) may return redemption drafts with
unauthorized or missing signatures to the presenting financial
institution in accordance with prevailing banking industry draft return
procedures, and (ii) shall have no obligation to request Oral or
Written Instructions from a Fund with respect to any redemption drafts.
ARTICLE IV
OVERDRAFTS OR INDEBTEDNESS
If the Bank in its sole discretion advances funds, or if there
shall arise for whatever reason an overdraft or other indebtedness in
connection with any Account, such advancement of funds or overdraft
with respect to such Account shall be deemed a loan made by the Bank to
the Fund to which the Account relates payable on demand, and bearing
interest from the date incurred at the Overdraft Rate, such Overdraft
Rate to be adjusted on the effective date of any change in the prime
commercial lending rate constituting a part thereof. Upon any advance
or overdraft in connection with an omnibus Account maintained for the
benefit of more than one Fund, the Bank shall be furnished promptly
with Written Instructions identifying each Fund to which such advance
or overdraft relates, and the amount allocable thereto. Each Fund
hereby agrees with respect to its Account(s) and any advancement of
funds or overdraft that the Bank shall have a continuing lien and
security interest in and to any property at any time held by it for the
benefit of the Fund either hereunder or under such Fund's Custody
Agreement with the Bank, or in which the Fund may have an interest
which is then in the Bank's possession or control or in possession or
control of any third party acting in the Bank's behalf, including in
its behalf as Custodian under the Fund's Custody Agreement with the
Bank. Each Fund authorizes the Bank, in its sole discretion, at any
time to charge any such overdraft or indebtedness together with
interest due thereon at the Overdraft Rate against any balance of
accounts standing to the Fund's credit on the books of the Bank,
including those books maintained by the Bank in its capacity as
Custodian for the Fund under its Custody Agreement with the Fund. In
addition, each Fund hereby covenants that on each Business Day on which
either it intends to enter a reverse repurchase agreement and/or
otherwise borrow from a third party, or which next succeeds a Business
Day on which at the close of business the Fund had outstanding a
reverse repurchase agreement or such a borrowing, it shall prior to
9:00 a.m. (New York City time) advise the Bank, in writing, of each
such borrowing, shall specify the portfolio or series to which the same
relates, and shall not incur any indebtedness not so specified other
than from the Bank.
ARTICLE V
ACCESS: CALL-BACK SECURITY PROCEDURE
1. Services Generally. Each Fund shall be permitted to utilize
ACCESS to obtain direct on-line access to its Accounts. ACCESS shall
permit each Fund at the times mutually agreed upon by the Bank and such
Fund to receive reports, make inquiries, instruct the Bank to disburse
money in accordance with Article III, and perform such other functions
as are more fully set forth in Schedule I hereto.
2. Permitted Use; Proprietary Information. (a) Each Fund shall
use ACCESS and the services available thereby only for its own internal
and proper business purposes and shall not sell, lease or otherwise
provide, directly or indirectly, ACCESS or any of such services or any
portion thereof to any other person or entity. Each Fund shall obtain
and maintain at its own cost and expense all equipment and services,
including but not limited to communications services, necessary for it
to utilize ACCESS and receive the services thereby, and the Bank shall
not be responsible for the reliability or availability of any such
equipment or any services used in connection with ACCESS.
(b) Each Fund acknowledges that all data bases made available
as part of, or through ACCESS, and any proprietary data, processes,
information and documentation (other than any such which are or become
part of the public domain or are legally required to be made available
to the public) (collectively, the "Information"), are the exclusive and
confidential property of the Bank. Each Fund shall keep the Information
confidential by using the same care and discretion that each Fund uses
with respect to its own confidential property and trade secrets, and
shall neither make nor permit any disclosure without the express prior
written consent of the Bank.
(c) Upon termination of this Agreement for any reason, each
Fund shall return to the Bank any and all copies of the Information
which are in such Fund's possession or under its control, or
distributed to third parties. The provisions of this Article shall not
affect the copyright status of any of the Information which may be
copyrighted and shall apply to all Information whether or not
copyrighted.
3. Modifications. The Bank reserves the right to modify ACCESS
from time to time without notice to any Fund. Each Fund agrees not to
modify or attempt to modify ACCESS without the Bank's prior written
consent. Each Fund acknowledges that ACCESS is the property of the Bank
and, accordingly, each Fund agrees that any modifications to ACCESS,
whether by such Fund or the Bank and whether with or without the Bank's
consent, shall become the property of the Bank.
4. No Representations or Warranties. Neither the Bank nor any
manufacturers or suppliers it utilizes or any Fund utilizes in
obtaining ACCESS makes any warranties or representations, express or
implied, in fact or in law, including but not limited to warranties of
merchantability and fitness for a particular purpose.
5. Security; Reliance; Unauthorized Use. Each Fund will, and
will cause all persons utilizing ACCESS to, treat the user and
authorization codes, passwords and authentication keys applicable to
ACCESS with extreme care. The Bank is hereby irrevocably authorized to
act in accordance with and rely on Written Instructions received by it
through ACCESS. Each Fund acknowledges that it is its sole
responsibility to assure that only authorized persons use ACCESS and
that the Bank shall not be responsible nor liable for any unauthorized
use thereof.
6. Limitations of Liability. (a) Except as otherwise
specifically provided in Section 6(b) below, the Bank shall have no
liability for any losses, damages, injuries, claims, costs or expenses
of a Fund arising out of or in connection with any failure, malfunction
or other problem relating to any Fund's use of ACCESS, except for money
damages suffered as the direct result of the negligence of the Bank in
an amount not exceeding, in the aggregate for all such losses, damages,
injuries, claims, costs and expenses of a Fund arising during any
month, the total charges paid by such Fund to the Bank for ACCESS and
services hereunder which caused such loss, damage, injury, claim, cost
or expense during the 12 months preceding the month in question, or
such lesser number of months as a Fund has used ACCESS if such Fund has
not received 12 months use of ACCESS; provided however, that the Bank
shall have no liability under this Section 6(a) if a Fund fails to
comply with the provisions of Section 6(d).
(b) The Bank's liability for its negligence in executing or
failing to execute a Fund's Written Instructions received through
ACCESS shall be only with respect to a transfer, or failure to
transfer, funds not in accordance with such Written Instructions after
such instructions have been duly acknowledged by the Bank, and shall be
contingent upon the Fund complying with the provisions of Section 6(d)
below, and shall be limited to (i) restoration of the principal amount
mistransferred, if and to the extent that the Bank would be required to
make such restoration under applicable law, and (ii) the lesser of (A)
a Fund's actual pecuniary loss incurred by reason of its loss of use of
the mistransferred funds or the funds which were not transferred, as
the case may be, or (B) compensation for the loss of the use of the
mistransferred funds or the funds which were not transferred, as the
case may be, at a rate per annum equal to the average federal funds
rate as computed from the Federal Reserve Bank of New York's daily
determination of the effective rate for federal funds, for the period
during which a Fund has lost use of such funds. In no event shall the
Bank have any liability for failing to execute Written Instructions for
the transfer of funds which are received by it through ACCESS other
than through the applicable transfer module for the particular
instructions.
(c) Without limiting the generality of the foregoing, it is
hereby agreed that in no event shall the Bank or any manufacturer or
supplier of its computer equipment, software or services be responsible
for any special, indirect, incidental or consequential damages which a
Fund may incur arising out of or in connection with ACCESS or the
services provided thereby, even if the Bank or such manufacturer or
supplier has been advised of the possibility of such damages and
regardless of the form of action.
(d) Each Fund shall notify the Bank of any errors, omissions or
interruptions in, or delay or unavailability of, ACCESS as promptly as
practicable, and in any event within one Business Day after the
earliest of (i) discovery thereof, (ii) the date discovery should have
occurred through the exercise of reasonable care, and (iii) in the case
of any error, the date of the earliest notice to such Fund which
reflects such error.
7. Funds Transfer Back-Up Procedure. (a) In the event ACCESS is
inoperable and a Fund is unable to utilize ACCESS for the transmission
of Written Instructions to the Bank to transfer funds, the Fund may
give Oral Instructions regarding funds transfers, it being expressly
understood and agreed that the Bank's acting pursuant to such Oral
Instructions shall be contingent upon the Bank's verification of the
authenticity thereof pursuant to the Call-Back Security Procedure set
forth on Schedule III hereto (the "Procedure"). In this regard, each
Fund shall deliver to the Bank a Funds Transfer Telephone Instruction
Authorization in the form of Schedule III-A hereto, identifying the
individuals authorized to deliver and/or confirm all such Oral
Instructions. Each Fund understands and agrees that the Procedure is
intended to determine whether Oral Instructions received pursuant to
this Section are authorized but is not intended to detect any errors
contained in such instructions. Each Fund hereby accepts the Procedure
and confirms its belief that the Procedure is commercially reasonable.
(b) The Bank shall have no liability whatsoever for any funds
transfer executed in accordance with Oral Instructions delivered and
confirmed pursuant to this Section 7 and Schedule III hereto. The
Bank's liability for its negligence in executing or failing to execute
any such Oral Instructions shall be determined by reference to Section
6(b) of this Article.
(c) The Bank reserves the right to suspend acceptance of Oral
Instructions pursuant to this Section 7 if conditions exist which the
Bank, in its sole discretion, believes have created an unacceptable
security risk.
ARTICLE VI
CONCERNING THE BANK
1. Standard of Care; Presentment of Claims. Except as otherwise
provided herein, the Bank shall not be liable for any costs, expenses,
damages, liabilities or claims (including attorney's fees) incurred by
a Fund, except those costs, expenses, damages, liabilities or claims
arising out of the Bank's own negligence, bad faith or willful
misconduct. Notwithstanding the foregoing or anything contained in the
Schedules hereto, the Bank shall not be liable for any loss or damage,
including attorney's fees, resulting from the Bank paying any
redemption draft containing a forged drawer signature, unless such loss
or damage arises out of the Bank's gross negligence, bad faith or
willful misconduct. All claims against the Bank hereunder shall be made
by the respective Fund as promptly as practicable, and in any event
within 6 months from the date of the action or inaction on which such
claim is based, and shall include documentation evidencing such claim
and loss.
2. No Liability. The Bank shall have no obligation hereunder
for costs, expenses, damages, liabilities or claims, including
attorney's fees, which are sustained or incurred by reason of any
action or inaction by the Federal Reserve wire transfer system or the
New York Automated Clearing House. Notwithstanding any other provision
elsewhere contained in this Agreement, in no event shall the Bank 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.
3. Indemnification. Each Fund shall indemnify and exonerate,
save and hold harmless the Bank from and against any and all costs,
expenses, damages, liabilities or claims, including reasonable
attorney's fees and expenses, which the Bank may sustain or incur or
which may be asserted against the Bank by reason of or as a result of
any action taken or omitted by the Bank in connection with its
performance under this Agreement, except those costs, expenses,
damages, liabilities or claims arising out of the Bank's own
negligence, bad faith or willful misconduct. This indemnity shall be a
continuing obligation of each Fund notwithstanding the termination of
this Agreement, or any Account, with respect to a Fund.
4. No Obligation to Inquire. Without limiting the generality of
the foregoing, the Bank shall in no event be under any obligation to
inquire into, and shall not be liable for:
(a) the due authority of any Authorized Person acting on behalf
of a Fund in connection with this Agreement;
(b) the genuineness of any drawer signature on any draft
deposited in any Account, or whether such signature is a forgery,
other than the signature of the drawer of any draft drawn on the Bank;
(c) the existence or genuineness of any endorsement or any
marking purporting to be an endorsement on any draft deposited in any
Account, or whether such endorsement or marking is a forgery, it being
expressly understood that all risks associated with the acceptance by
the Bank of any draft payable to a payee other than a Fund for deposit
in any Account pursuant to Oral or Written Instructions by the Fund
shall be borne by such Fund.
(d) any discrepancy between the pre-printed investment stub
(other than a substitute stub created by the Bank) and the payee either
named on a draft or written on the face thereof, provided the Bank has
acted in accordance with the investment stub;
(e) any discrepancy between the written amount for which any
draft is drawn and the Magnetic Incription Character Recognition
("MICR") code enscribed thereon by any bank other than the Bank on any
draft presented, provided the Bank has acted in accordance with the
MICR code;
(f) any disbursement directed by any Fund, regardless of the
purpose therefor;
(g) any determination of the Share balance of any Shareholder
whose name is signed on any redemption draft;
(h) any determination of length of time any Shares have been
owned by any Shareholder or the method of payment utilized to purchase
such Shares by such Shareholder;
(i) any claims, liens, attachments, stays or stop orders with
respect to any Shares, proceeds, or money, other than a stop payment
placed by a Fund on a draft drawn by such Fund on its Account;
(j) the propriety and/or legality of any transaction in any
Account;
(k) the lack of authority of any person signing as a drawer of
a draft, provided such person and his specimen signature is specified
in the certificate of authorized signatures last received by the Bank;
or
(l) whether any redemption draft equals or exceeds any minimum
amount.
5. Reliance Upon Instructions. The Bank shall be entitled to
rely upon any Written or Oral Instructions received by the Bank. Each
Fund agrees to forward to the Bank Written Instructions confirming Oral
Instructions in such manner so that such Written Instructions are
received by the Bank by the close of business of the same day that such
Oral Instructions are given to the Bank. Each Fund agrees that the fact
that such confirming Written Instructions are not timely received or
that contrary Written Instructions are received by the Bank shall in no
way affect the validity or enforceability of the transactions
previously authorized.
6. Force Majeure. The Bank shall not be responsible or liable
for any failure or delay in the performance of its obligations under
this Agreement arising out of or caused, directly or indirectly, by
circumstances beyond its control, including acts of God; earthquakes;
fires; floods; wars; civil or military disturbances; sabotage;
epidemics; riots; interruptions, loss or malfunctions of utilities,
computers (hardware or software), transportation, or communications
service; mechanical breakdowns; interruption or loss of ACCESS (except
as otherwise provided in Section 7 of Article V); accidents; acts of
civil or military authority; governmental actions; labor disputes; or
inability to obtain labor, material, equipment or transportation.
7. No Implied Duties; Performance According To Applicable Law.
The Bank shall have no duties or responsibilities except such duties
and responsibilities as are specifically set forth in this Agreement
and Schedules I and II hereto, and no covenant or obligation shall be
implied in this Agreement against the Bank. The Bank's duties and
responsibilities hereunder shall be performed in accordance with
applicable laws, regulations and rules, including but not limited to
Federal Reserve Regulation CC and the Operating Rules of the New York
Automated Clearing House, and the Bank shall have no obligation to take
actions which in the reasonable opinion of the Bank are either
inconsistent with, or prejudice or impair the Bank's rights under, any
such laws, regulations and rules.
8. Requests for Instructions. At any time the Bank may apply to
an officer of a Fund for Oral or Written Instructions with respect to
any matter arising in connection with the Bank's duties and obligations
with respect to an Account of such Fund, and the Bank shall not be
liable for any action taken or permitted by it in good faith in
accordance with such Oral or Written Instructions. Such application for
Oral or Written Instructions may, at the option of the Bank, set forth
in writing any action proposed to be taken or omitted by the Bank with
respect to its duties or obligations under this Agreement and the date
on and/or after which such action shall be taken, and the Bank shall
not be liable for any action taken or omitted in accordance with a
proposal included in any such application on or after the date
specified therein (which shall be at least 5 days after the date of
such Fund's receipt of such application) unless, prior to taking or
omitting any such action, the Bank has received Oral or Written
Instructions in response to such application specifying the action to
be taken or omitted. The Bank may apply for and obtain the advice and
opinion of counsel to each Fund or of its own counsel, at the expense
of a Fund, and shall be fully protected with respect to anything done
or omitted by it in good faith in conformity with such advice or
opinion.
9. Delegation of Duties. The Bank may delegate any of its
duties and obligations hereunder to any delegee and may employ agents
or attorneys-in-fact; provided however, that no such delegation or
employment by the Bank shall discharge the Bank from its obligations
hereunder. The Bank shall have no liability or responsibility
whatsoever if any delegee, agent or attorney-in-fact shall have been
selected or approved by a Fund. Notwithstanding the foregoing, nothing
contained in this paragraph shall obligate the Bank to effect any
delegation or to employ any agent or attorney-in-fact.
10. Fees; Invoices. (a) For its services hereunder, each Fund
agrees to pay the Bank (i) its out-of-pocket expenses, (ii) the monthly
fees and compensation set forth on Schedules I and II attached hereto,
and (iii) any negative Calendar Month Earnings Credits, and such other
amounts as may be mutually agreed upon from time to time. The Bank
shall provide each Fund with a monthly activity analysis detailing
service volumes, and including average Account Available Balances and
average ledger balances, and all fees owing for such month.
(b) The Bank shall submit periodic invoices specifying the
amount of all out-of-pocket expenses, fees, compensation and negative
Calendar Month Earnings Credits then due hereunder. The Bank may, and
is hereby authorized by each Fund, to charge such amounts to the
appropriate Fund's Account(s), but only if such amounts remain unpaid
for fifteen (15) days after the end of the period to which such amounts
relate.
11. Application of Calendar Month Earnings Credits. (a) Any
positive Calendar Month Earnings Credit for a calendar month shall be
applied only as follows and only in the specified order:
(i) First, applied against such compensation, fees, but not
out-of-pocket expenses, payable by such Fund to the
Bank under this Agreement for such month; and
(ii) Second, applied against such compensation, fees, and
negative Calendar Month Earnings Credits, but not
out-of-pocket expenses, payable by such Fund to the
Bank under this Agreement for any subsequent month in
the same calendar year.
(b) Except as provided above, in no event may any Calendar
Month Earnings Credit be applied to any month other than the month in
which it was earned. Calendar Month Earnings Credits may not be
transferred to, or utilized by, any other Fund, person or entity. The
portion, if any, of any Calendar Month Earnings Credit not used by a
Fund may be carried, but only forward; provided, however, that in no
event may any Calendar Month Earnings Credit, including those earned
during the fourth calendar quarter, be carried beyond the end of the
calendar year in which earned.
ARTICLE VII
TERMINATION
1. Prior Notice. This Agreement may be terminated by either the
Bank giving to any Fund, or any Fund giving to the Bank, 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.
Notwithstanding the foregoing, the Bank reserves the right to terminate
this Agreement at any time upon 30 days prior written notice if any of
the conditions precedent set forth in Article II, paragraph 3 are
unfulfilled.
2. Obligations Upon Termination. Upon any termination, the
Bank's sole obligations, which shall arise only after, and not before,
each Fund which is the subject of such termination has paid to the Bank
all out-of-pocket expenses, fees, compensation, negative Calendar Month
Earnings Credits and other amounts owed by such Fund to the Bank, shall
be (i) to deliver to such Fund such records, if any, as may be owned by
such Fund, in the form and manner kept by the Bank on such date of
termination, and (ii) to pay any funds held hereunder for such Fund to
such Fund.
ARTICLE VIII
MISCELLANEOUS
1. Certificates of Authorized Persons. Each Fund agrees to
furnish to the Bank a new certificate of Authorized Persons in the
event that any present Authorized Person of such Fund ceases to be an
Authorized Person or in the event that any other Authorized Persons are
appointed and authorized. Until such new certificate is received, the
Bank shall be fully protected in acting under the provisions of this
Agreement upon Oral or Written Instructions or signatures of the
present Authorized Persons as set forth in the last delivered
certificate.
2. Notices. (a) Any notice or other instrument in writing,
authorized or required by this Agreement to be given to the Bank, shall
be sufficiently given if addressed to the Bank and received by it at
its offices at 00 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Division Manager - Mutual Funds, or at such other
place as the Bank may from time to time designate in writing.
(b) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to a Fund shall be sufficiently
given if addressed to a Fund and received by it at 00 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as such Fund may from time
to time designate in writing.
3. Cumulative Rights and No Waiver. Each and every right
granted to the Bank 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 the Bank to exercise, and no delay in exercising, any
right will operate as a waiver thereof, nor will any single or partial
exercise by the Bank of any right preclude any other or future exercise
thereof or the exercise of any other right.
4. 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.
5. Amendments. This Agreement may not be amended or modified in
any manner except by a written agreement executed by the Bank and each
Fund to be bound thereby, and, except in the case of an amendment to
Schedules I and II hereto, authorized or approved by a resolution of
each Fund's board of directors or board of trustees, as appropriate.
6. Headings. The headings in this Agreement are inserted for
convenience and identification only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of
this Agreement or any provisions hereof.
7. Applicable Law; Consent to Jurisdiction Jury Trial Waiver.
This Agreement shall be construed in accordance with the laws of the
State of New York without giving effect to conflict of laws principles
thereof. Each party 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 hereby waives its right to trial by
jury.
8. No Third Party Beneficiaries. The provisions of this
Agreement are intended to benefit only the Bank and each Fund and their
respective permitted successors and assigns, and no right shall be
granted to any other person by virtue of this Agreement.
9. Successors and Assigns. 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 the Bank
and authorized or approved by a resolution of such Fund's board of
directors, or board of trustees, as appropriate.
10. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but
such counterparts shall, together, constitute only one instrument.
11. Several Obligations. The parties acknowledge that the
obligations of the Funds 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective corporate officers,
thereunto duly authorized, as of the day and year first above written.
By: Xxxxxx X. Xxxxxx, Secretary
-----------------------------------
By: Xxxxxx Xxxxxx, Treasurer
-----------------------------------
on behalf of each Fund identified
on Schedule A attached hereto
THE BANK OF NEW YORK
By: S. Grunston
-----------------------------------
Title: XXXXXXX X. GRUNSTON
Vice President
SCHEDULE A
Name of Fund
First Eagle Fund of America, Inc.
EXHIBIT A
I, Xxxxxx X. Xxxxxx of First Eagle Fund of America, Inc. (the
"Fund"), a Maryland corporation do hereby certify that:
The following individuals have been duly authorized by the
Board of Directors of the Fund in conformity with the Fund's Articles
of Incorporation and By-Laws to give Oral Instructions and Written
Instructions on behalf of the Fund, for purposes of the Fund's Cash
Management and Related Services Agreement, and the signatures set forth
opposite their respective names are their true and correct signatures.
Name Signature
XXXX XXXXXX XXXX XXXXXX
----------------- -------------
XXXXX XXXXX XXXXX XXXXX
----------------- -------------
XXXX XXXXX XXXX XXXXX
----------------- -------------
XXX XXXXXXX XXX XXXXXXX
----------------- -------------
XXXX XXXXX XXXX XXXXX
----------------- -------------
XXXX XXXXXX XXXX XXXXXX
----------------- -------------
Xxxxxx X. Xxxxxx
-----------------------------
[Title of Officer]
Xxxxxx X. Xxxxxx, Secretary
