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