TRANSFER AGENCY AGREEMENT
AGREEMENT made this 5th day of February, 1996, between
FIRST EAGLE FUND OF AMERICA, INC. (the "Company"), a Maryland
corporation having its principal place of business at 0000
Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, and BISYS FUND SERVICES,
INC. ("BISYS"), a Delaware corporation having its principal
place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Company desires that BISYS perform certain
services for the Company; and
WHEREAS, BISYS is willing to perform such services on
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises
and covenants herein set forth, the parties agree as follows:
1. Services.
BISYS shall perform for the Company the transfer
agent services set forth in Schedule A hereto.
BISYS also agrees to perform for the Company
such special services incidental to the performance of the
services enumerated herein as agreed to by the parties from time
to time. BISYS shall perform such additional services as are
provided on an amendment to Schedule A hereof, in consideration
of such fees as the parties hereto may agree.
BISYS may, in its discretion, appoint in writing
other parties qualified to perform transfer agency services
reasonably acceptable to the Company (individually, a
"Sub-transfer Agent") to carry out some or all of its
responsibilities under this Agreement; provided, however, that
the Sub-transfer Agent shall be the agent of BISYS and not the
agent of the Company, and that BISYS shall be fully responsible
for the acts of such Sub-transfer Agent and shall not be
relieved of any of its responsibilities hereunder by the
appointment of such Sub-transfer Agent.
2. Fees.
The Company shall pay BISYS for the services to
be provided by BISYS under this Agreement in accordance with,
and in the manner set forth in, Schedule B hereto. BISYS may
increase the fees it charges pursuant to the fee schedule;
provided, however, that BISYS may not increase such fees until
the expiration of the Initial Term of this Agreement (as defined
below), unless the Company otherwise agrees to such change in
writing. Fees for any additional services to be provided by
BISYS pursuant to an amendment to Schedule A hereto shall be
subject to mutual agreement at the time such amendment to
Schedule A is proposed.
3. Reimbursement of Expenses.
In addition to paying BISYS the fees described
in Section 2 hereof, the Company agrees to reimburse BISYS for
BISYS' out-of-pocket expenses in providing services hereunder,
including without limitation, the following:
(a) All freight and other delivery and
bonding charges incurred by BISYS
in delivering materials to and from
the Company and in delivering all
materials to shareholders;
(b) All direct telephone, telephone
transmission and telecopy or other
electronic transmission expenses
incurred by BISYS in communication
with the Company, the Company's
investment adviser or custodian,
dealers, shareholders or others as
required for BISYS to perform the
services to be provided hereunder;
(c) Costs of postage, couriers, stock
computer paper, statements, labels,
envelopes, checks, reports, letters,
tax forms, proxies, notices or other
form of printed material which shall
be required by BISYS for the
performance of the services to be
provided hereunder;
(d) The cost of microfilm or microfiche of
records or other materials; and
(e) Any expenses BISYS shall incur at the
written direction of an officer of
the Company thereunto duly authorized.
4. Effective Date.
This Agreement shall become effective as of the
date first written above (the "Effective Date").
5. Term.
This Agreement shall continue in effect, unless
earlier terminated by either party hereto as provided
hereunder, until February 4, 1997. Thereafter, it shall be
renewed automatically for successive one-year terms unless
written notice not to renew is given by the non-renewing party
to the other party at least 60 days prior to the expiration of
the then-current term; provided, however, that after such
termination, for so long as BISYS, with the written consent of
the Company, in fact continues to perform any one or more of
the services contemplated by this Agreement or any Schedule or
exhibit hereto, the provisions of this Agreement, including
without limitation the provisions dealing with indemnification,
shall continue in full force and effect. Fees and out-of-pocket
expenses incurred by BISYS but unpaid by the Company upon such
termination shall be immediately due and payable upon and
notwithstanding such termination. BISYS shall be entitled
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to collect from the Company, in addition to the fees and
disbursements provided by Sections 2 and 3 hereof, the amount
of all of BISYS' cash disbursements and a reasonable fee
(which fee shall be not less than one hundred and two percent
(102%) of the sum of the actual costs incurred by BISYS in
performing such service) for services in connection with
BISYS' activities in effecting such termination, including
without limitation, the delivery to the Company and/or its
distributor or investment adviser and/or other parties, of the
Company's property, records, instruments and documents, or any
copies thereof. Subsequent to such termination, BISYS, for a
reasonable fee, will provide the Company with reasonable
access to any Company documents or records remaining in its
possession.
6. Uncontrollable Events.
BISYS assumes no responsibility hereunder, and
shall not be liable for any damage, loss of data, delay or any
other loss whatsoever caused by events beyond its reasonable
control.
7. Legal Advice.
BISYS shall notify the Company at any time
BISYS believes that it is in need of the advice of counsel
(other than counsel in the regular employ of BISYS or any
affiliated companies) with regard to BISYS' responsibilities
and duties pursuant to this Agreement; and after so notifying
the Company, BISYS, at its discretion, shall be entitled to
seek, receive and act upon advice of legal counsel of its
choosing, such advice to be at the expense of the Company
unless relating to a matter involving BISYS' willful
misfeasance, bad faith, gross negligence or reckless disregard
with respect to BISYS' responsibilities and duties hereunder
and BISYS shall in no event be liable to the Company or any
shareholder or beneficial owner of the Company for any action
reasonably taken pursuant to such advice.
8. Instructions.
Whenever BISYS is requested or authorized to
take action hereunder pursuant to instructions from a
shareholder, or a properly authorized agent of a shareholder
("shareholder's agent"), concerning an account, BISYS shall be
entitled to rely upon any certificate, letter or other
instrument or communication, believed by BISYS to be genuine
and to have been properly made, signed or authorized by an
officer or other authorized agent of the Company or by the
shareholder or shareholder's agent, as the case may be, and
shall be entitled to receive as conclusive proof of any fact
or matter required to be ascertained by it hereunder a
certificate signed by an officer of the Company or any other
person authorized by the Company's Board of Directors or by
the shareholder or shareholder's agent, as the case may be.
As to the services to be provided hereunder,
BISYS may rely conclusively upon the terms of the Prospectuses
and Statement of Additional Information of the Company to the
extent that such services are described therein unless BISYS
receives written instructions to the contrary in a timely
manner from the Company.
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9. Standard of Care; Reliance on Records and
Instructions; Indemnification.
BISYS shall use its best efforts to ensure the
accuracy of all services performed under this Agreement, but
shall not be liable to the Company for any action taken or
omitted by BISYS in the absence of bad faith, willful
misfeasance, gross negligence or from reckless disregard by it
of its obligations and duties. The Company agrees to indemnify
and hold harmless BISYS, its employees, agents, directors,
officers and nominees from and against any and all claims,
demands, actions and suits, whether groundless or otherwise,
and from and against any and all judgments, liabilities,
losses, damages, costs, charges, counsel fees and other
expenses of every nature and character arising out of or in
any way relating to BISYS' actions taken or nonactions with
respect to the performance of services under this Agreement or
based, if applicable, upon reasonable reliance on information,
records, instructions or requests given or made to BISYS by
the Company, the investment adviser and on any records
provided by any fund accountant or custodian thereof;
provided that this indemnification shall not apply to actions
or omissions of BISYS in cases of its own bad faith, willful
misfeasance, gross negligence or from reckless disregard by it
of its obligations and duties; and further provided that prior
to confessing any claim against it which may be the subject of
this indemnification, BISYS shall give the Company written
notice of and reasonable opportunity to defend against said
claim in its own name or in the name of BISYS.
10. Record Retention and Confidentiality.
BISYS shall keep and maintain on behalf of the
Company all books and records which the Company or BISYS is,
or may be, required to keep and maintain pursuant to any
applicable statutes, rules and regulations, including without
limitation Rules 31a-1 and 31a-2 under the Investment
Company Act of 1940, as amended (the "1940 Act"), relating
to the maintenance of books and records in connection with the
services to be provided hereunder. BISYS further agrees that
all such books and records shall be the property of the
Company and to make such books and records available for
inspection by the Company or by the Securities and Exchange
Commission (the "Commission") at reasonable times and
otherwise to keep confidential all books and records and other
information relative to the Company and its shareholders,
except when requested to divulge such information by
duly-constituted authorities or court process, or requested by
a shareholder or shareholder's agent with respect to
information concerning an account as to which such shareholder
has either a legal or beneficial interest or when requested by
the Company, the shareholder, or shareholder's agent, or the
dealer of record as to such account.
11. Reports.
BISYS will furnish to the Company and to its
properly-authorized auditors, investment advisers, examiners,
distributors, dealers, underwriters, salesmen, insurance
companies and others designated by the Company in writing,
such reports at such times as are prescribed in Schedule C
attached hereto, or as subsequently agreed upon by the parties
pursuant to an amendment to Schedule C. The Company agrees to
examine each such report or copy promptly and will report or
cause to be reported any errors or discrepancies therein not
later than three business days from the receipt thereof. In
4
the event that errors or discrepancies, except such errors and
discrepancies as may not reasonably be expected to be discovered
by the recipient within three days after conducting a diligent
examination, are not so reported within the aforesaid period of
time, a report will for all purposes be accepted by and be
binding upon the Company and any other recipient, and BISYS
shall have no liability for errors or discrepancies therein and
shall have no further responsibility with respect to such report
except to perform reasonable corrections of such errors and
discrepancies within a reasonable time after requested to do so
by the Company.
12. Rights of Ownership.
All computer programs and procedures developed
to perform services required to be provided by BISYS under this
Agreement are the property of BISYS. All records and other data
except such computer programs and procedures are the exclusive
property of the Company and all such other records and data will
be furnished to the Company in appropriate form as soon as
practicable after termination of this Agreement for any reason.
13. Return of Records.
BISYS may at its option at any time, and shall
promptly upon the Company's demand, turn over to the Company and
cease to retain BISYS' files, records and documents created and
maintained by BISYS pursuant to this Agreement which are no
longer needed by BISYS in the performance of its services or for
its legal protection. If not so turned over to the Company, such
documents and records will be retained by BISYS for six years
from the year of creation. At the end of such six-year period,
such records and documents will be turned over to the Company
unless the Company authorizes in writing the destruction of such
records and documents.
14. Bank Accounts.
The Company shall establish and maintain such
bank accounts with such bank or banks as are selected by the
Company, as are necessary in order that BISYS may perform the
services required to be performed hereunder. To the extent that
the performance of such services shall require BISYS directly to
disburse amounts for payment of dividends, redemption proceeds
or other purposes, the Company shall provide such bank or banks
with all instructions and authorizations necessary for BISYS to
effect such disbursements.
15. Representations of the Company.
The Company certifies to BISYS that: (a) as of
the close of business on the Effective Date, the Company has
authorized unlimited shares, and (b) by virtue of its
Certificate of Incorporation, shares which are redeemed by the
Company may be sold by the Company from its treasury, and (c)
this Agreement has been duly authorized by the Company and, when
executed and delivered by the Company, will constitute a legal,
valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratoritun and other laws of
5
general application affecting the rights and remedies of
creditors and secured parties.
16. Representations of BISYS.
BISYS represents and warrants that: (a) BISYS
has been in, and shall continue to be in, substantial
compliance with all provisions of law, including Section 17A(c)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), required in connection with the performance of
its duties under this Agreement; and (b) the various procedures
and systems which BISYS has implemented with regard to
safekeeping from loss or damage attributable to fire, theft or
any other cause of the blank checks, records, and other data of
the Company and BISYS' records, data, equipment, facilities and
other property used in the performance of its obligations
hereunder are adequate and that it will make such changes
therein from time to time as are required for the secure
performance of its obligations hereunder.
17. Insurance.
BISYS shall notify the Company should its
insurance coverage with respect to professional liability or
errors and omissions coverage be canceled or reduced. Such
notification shall include the date of change and the reasons
therefor. BISYS shall notify the Company of any material claims
against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and
shall notify the Company from time to time as may be
appropriate of the total outstanding claims made by BISYS under
its insurance coverage.
18. Information to be furnished by the Company.
The Company has furnished to BISYS the
following:
(a) Copies of the Certificate of
Incorporation of the Company and of
any amendments thereto, certified by
the proper official of the state in
which such Certificate has been filed.
(b) Copies of the following documents:
1. The Company's By-Laws and any
amendments thereto;
2. Certified copies of resolutions of
the Board of Directors covering the
following matters:
A. Approval of this Agreement and
authorization of a specified
officer of the Company to
execute and deliver this
Agreement and authorization for
specified officers of the
Company to instruct BISYS
hereunder; and
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B. Authorization of BISYS to
act as Transfer Agent for
the Company.
(c) A list of all officers of the Company,
together with specimen signatures of
those officers, who are authorized to
instruct BISYS in all matters.
(d) Two copies of the following (if such
documents are employed by the
Company):
1. Prospectuses and Statement of
Additional Information;
2. Distribution Agreement; and
3. All other forms commonly used
by the Company or its Distributor
with regard to their relationships
and transactions with shareholders.
(e) A certificate as to shares of
beneficial interest of the Company
authorized, issued, and outstanding as
of the Effective Date of BISYS'
appointment as Transfer Agent (or as of
the date on which BISYS' services are
commenced, whichever is the later date)
and as to receipt of full consideration
by the Company for all shares
outstanding, such statement to be
certified by the Treasurer of the
Company.
19. Information Furnished by BISYS.
BISYS has furnished to the Company the following:
(a) BISYS' Articles of Incorporation.
(b) BISYS' Bylaws and any amendments thereto.
(c) Certified copies of actions of BISYS covering
the following matters:
1. Approval of this Agreement, and authoriza-
tion of a specified officer of BISYS to
execute and deliver this Agreement;
2. Authorization of BISYS to act as Transfer
Agent for the Company.
(d) A copy of the most recent independent
accountants' report relating to
internal accounting control systems as
filed with the Commission pursuant to
Rule 17Ad-13 under the Exchange Act.
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20. Amendments to Documents.
The Company shall furnish BISYS written copies
of any amendments to, or changes in, any of the items referred
to in Section 18 hereof forthwith upon such amendments or
changes becoming effective. In addition, the Company agrees
that no amendments will be made to the Prospectuses or
Statement of Additional Information of the Company which might
have the effect of changing the procedures employed by BISYS in
providing the services agreed to hereunder or which amendment
might affect the duties of BISYS hereunder unless the Company
first obtains BISYS' approval of such amendments or changes.
21. Reliance on Amendments.
BISYS may rely on any amendments to or changes
in any of the documents and other items to be provided by the
Company pursuant to Sections 18 and 20 of this Agreement and
the Company hereby indemnifies and holds harmless BISYS from
and against any and all claims, demands, actions, suits,
judgments, liabilities, losses, damages, costs, charges,
counsel fees and other expenses of every nature and character
which may result from actions or omissions on the part of BISYS
in reasonable reliance upon such amendments and/or changes.
Although BISYS is authorized to rely on the above-mentioned
amendments to and changes in the documents and other items to
be provided pursuant to Sections 18 and 20 hereof, BISYS shall
be under no duty to comply with or take any action as a result
of any of such amendments or changes unless the Company first
obtains BISYS' written consent to and approval of such
amendments or changes.
22. Compliance with Law.
Except for the obligations of BISYS set forth
in Section 10 hereof, the Company assumes full responsibility
for the preparation, contents, and distribution of each
prospectus of the Company as to compliance with all applicable
requirements of the Securities Act of 1933, as amended (the
"1933 Act"), the 1940 Act, and any other laws, rules and
regulations of governmental authorities having jurisdiction.
BISYS shall have no obligation to take cognizance of any laws
relating to the sale of the Company's shares. The Company
represents and warrants that no shares of the Company will be
offered to the public until the Company's registration
statement under the 1933 Act and the 1940 Act has been declared
or becomes effective.
23. Notices.
Any notice provided hereunder shall be
sufficiently given when sent by registered or certified mail to
the party required to be served with such notice at the
following address: 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, or
at such other address as such party may from time to time
specify in writing to the other party pursuant to this Section.
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24. Headings.
Paragraph headings in this Agreement are
included for convenience only and are not to be used to
construe or interpret this Agreement.
25. Assigmnent.
This Agreement and the rights and duties
hereunder shall not be assignable by either of the parties
hereto except by the specific written consent of the other
party. This Section 25 shall not limit or in any way affect
BISYS' right to appoint a Sub-transfer Agent pursuant to
Section 1 hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed all as of the day and year first
above written.
FIRST EAGLE FUND OF AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx, Secretary
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Xxxxxx Xxxxxx, Treasurer
BISYS FUND SERVICES, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx, Executive
Vice President
SCHEDULE A
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
FIRST EAGLE FUND OF AMERICA, INC.
AND
BISYS FUND SERVICES, INC.
TRANSFER AGENCY SERVICES
1. Shareholder Transactions
a. Process shareholder purchase and redemption orders.
b. Set up account information, including address, dividend
option, taxpayer identification numbers and wire instructions.
c. Issue confirmations in compliance with Rule 10 under the
Securities Exchange Act of 1934, as amended.
d. Issue periodic statements for shareholders.
e. Process transfers and exchanges.
f. Process dividend payments, including the purchase of new
shares, through dividend reimbursement.
2. Shareholder Information Services
a. Make information available to shareholder
servicing unit and other remote access units
regarding trade date, share price, current
holdings, yields, and dividend information.
b. Produce detailed history of transactions through duplicate or
special order statements upon request.
c. Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements or marketing material to
current shareholders.
A-1
3. Compliance Reporting.
a. Provide reports to the Securities and Exchange Commission,
the National Association of Securities Dealers and the States
in which the Company is registered.
b. Prepare and distribute appropriate Internal Revenue Service
forms for the Company and shareholder income and capital
gains.
c. Issue tax withholding reports to the Internal Revenue
Service.
4. Dealer/Load Processing (if applicable)
a. Provide reports for tracking rights of accumulation and
purchases made under a Letter of Intent.
b. Account for separation of shareholder investments from
transaction sale charges for purchase of Company shares.
c. Calculate fees due under 12b-1 plans for distribution and
marketing expenses.
d. Track sales and commission statistics by dealer and provide
for payment of commissions on direct shareholder purchases
in the Company.
5. Shareholder Account Maintenance
a. Maintain all shareholder records for each account in the
Company.
b. Issue customer statements on scheduled cycle, providing
duplicate second and third party copies if required.
c. Record shareholder account information changes.
d. Maintain account documentation files for each shareholder.
A-2
SCHEDULE B
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
FIRST EAGLE FUND OF AMERICA, INC.
AND
BISYS FUND SERVICES, INC.
TRANSFER AGENT FEES
Annual Fee:
$20,000.00
Annual Per Account Fee:
Open Accounts $19.00
Closed Accounts $ 5.00
Multiple Classes of Shares:
Classes of shares which have different net asset values or pay
different daily dividends will be treated as separate classes,
and the fee schedule above, including the appropriate minimums,
will be charged for each separate class.
Additional Services:
Additional services such as XXX processing, development of
interface capabilities, servicing of 403(b) and 408(c)
accounts, management of cash sweeps between DDAs and mutual
fund accounts and coordination of the printing and distribution
of prospectuses, annual reports and semi-annual reports are
subject to additional fees which will be quoted upon request.
Programming costs or database management fees for special
reports or specialized processing will be quoted upon request.
Out-of-pocket Expenses:
BISYS shall be entitled to be reimbursed for all reasonable
out-of-pocket expenses including, but not limited to, the
expenses set forth in Section 3 of the Transfer Agency
Agreement to which this Schedule B is attached.
B-1
SCHEDULE C
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
FIRST EAGLE FUND OF AMERICA, INC.
AND
BISYS FUND SERVICES, INC.
REPORTS
1 . Daily Shareholder Activity Journal
2. Daily Fund Activity Summary Report
a. Beginning Balance
b. Dealer Transactions
c. Shareholder Transactions
d. Reinvested Dividends
e. Exchanges
f Adjustments
g. Ending Balance
3. Daily Wire and Check Registers
4. Monthly Dealer Processing Reports
5. Monthly Dividend Reports
6. Sales Data Reports for Blue Sky Registration
7. Annual report by independent public accountants concerning
BISYS' shareholder system and internal accounting control
systems to be filed with the Securities and Exchange
Commission pursuant to Rule 17Ad-13 of the Securities
Exchange Act of 1934, as amended.
C-1
8. Monthly Discretionary Account Summary
* This report will list all accounts identified as
discretionary and will show their balances.
9. Monthly Statistical Report
* This report will include statistical data such
as share range analysis, account type analysis,
social code analysis, resident code analysis and
such other items that may be agreed upon by the
parties.
10. Monthly Customer Analysis Report
* This report will include various types of account
information including account size, tax-related
information, retirement plan/fees analysis and
such other items that may be agreed upon by the
parties.
C-2
