EXHIBIT 9(d)
MUTUAL FUNDS SUB-TRANSFER AGENCY AGREEMENT
AGREEMENT made as of September 1, 1995 by and between United States
Trust Company of New York ("U.S. Trust"), and Chase Global Funds Services
Company ("Sub-Transfer Agent").
W I T N E S S E T H:
WHEREAS, UST Master Funds, Inc. (the "Company") a Maryland
corporation, is registered as an open-end investment company under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Company is authorized to issue shares of Common Stock in
separate series and classes representing interests in separate portfolios of
securities and other assets;
WHEREAS, the Company has retained U.S. Trust to serve as the Company's
transfer agent, registrar and dividend disbursing agent;
WHEREAS, U.S. Trust desires to assign its duties and obligations with
respect to the provision of such services to Sub-Transfer Agent, and the Company
has acknowledged the right of U.S. Trust to make such assignment provided U.S.
Trust shall be as fully responsible to the Company for the acts and omissions of
Sub-Transfer Agent as U.S. Trust is for its own acts and omissions;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. U.S. Trust hereby appoints Sub-Transfer Agent to serve
as sub-transfer agent, sub-registrar and sub-dividend disbursing agent for each
class and/or series of Common Stock of the Company with respect to its existing
Funds (as hereinafter defined) for the period and on the terms set forth in this
Agreement. In the event that the Company establishes additional classes or
series other than the Common Stock of the Funds covered by this Agreement with
respect to which U.S. Trust desires to retain Sub-Transfer Agent to serve as
sub-transfer agent, sub-registrar and sub-dividend disbursing agent hereunder,
U.S. Trust shall notify Sub-Transfer Agent in writing, whereupon such fund shall
become a Fund hereunder and shall be subject to the provisions of this Agreement
to the same extent as the Funds (except to the extent that said provisions,
including the compensation payable on behalf of such new Fund, may be modified
in writing by U.S. Trust and Sub-Transfer Agent at the time). Sub-Transfer
Agent accepts such appointment and agrees to furnish the services herein set
forth in return for the compensation as provided in Paragraph 5 of this
Agreement.
2. REPRESENTATIONS AND WARRANTIES.
(a) U.S. Trust and Sub-Transfer Agent represent and warrant to each
other that:
(i) it is empowered under applicable laws and by its charter
and by-laws to enter into and perform this Agreement;
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(ii) all requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement;
(iii) it is duly registered as a transfer agent under Section 17A of
the Securities Exchange Act of 1934, as amended (the "1934 Act"). Each shall
promptly give written notice to the other and the Company in the event that its
registration is revoked or a proceeding is commenced that could result in such
revocation;
(iv) it has been in, and shall continue to be in, compliance with all
provisions of law, including Section 17A(c) of the 1934 Act, required in
connection with the performance of its duties under this Agreement;
(v) it has, and will continue to have, access to the facilities,
personnel and equipment required to fully perform its duties and obligations
hereunder;
(vi) no legal or administrative proceedings have been instituted or
threatened which would impair its ability to perform its duties and obligations
under this Agreement; and
(vii) its entrance into this Agreement shall not cause a material
breach or be in material conflict with any other agreement or obligation of it
or any law or regulation applicable to it;
U.S. Trust represents and warrants to Sub-Transfer Agent that:
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(i) U.S. Trust is a state chartered bank and trust company
organized and existing under the laws of the State of New York;
(c) Sub-Transfer Agent represents and warrants to U.S. Trust that:
(i) Sub-Transfer Agent is a Delaware corporation, duly organized
and existing and in good standing under the laws of Delaware;
3. DELIVERY OF DOCUMENTS. U.S. Trust has furnished Sub-Transfer Agent
with copies properly certified or authenticated of each of the following:
(a) Resolutions of the Company's Board of Directors authorizing the
appointment of U.S. Trust as transfer agent, registrar and dividend disbursing
agent for each class and/or series of Common Stock of the Company and approving
the Mutual Funds Transfer Agency Agreement made as of September 1, 1995 by and
between the Company and U.S. Trust;
(b) Incumbency and signature certificates identifying and containing
the signatures of the Company's officers and/or the persons authorized to sign
Written Instructions, as hereafter defined, on behalf of the Company;
(c) The Company's Charter;
(d) The Company's By-Laws;
(e) Resolutions of the Company's Board of Directors appointing U.S.
Trust as the investment adviser to the Company's Money, Government Money,
Equity, Managed Income, Income and
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Growth, International, Treasury Money, Early Life Cycle, Long-Term Supply of
Energy, Productivity Enhancers, Environmentally-Related Products and Services,
Aging of America, Communication and Entertainment, Business and Industrial
Restructuring, Global Competitors, Emerging Americas, Pacific/Asia, Pan
European, Short-Term Government Securities and Intermediate-Term Managed Income
Funds (herein "the Funds") and resolutions of the Company's Board of Directors
and Fund shareholders ("Shareholders") approving an Investment Advisory
Agreement between U.S. Trust and the Company dated February 6, 1985, as amended;
an Investment Advisory Agreement between U.S. Trust and the Company dated
November 26, 1985, as amended; an Investment Advisory Agreement between U.S.
Trust and the Company dated December 16, 1986, as amended; an Investment
Advisory Agreement between U.S. Trust and the Company dated May 27, 1987, as
amended; an Investment Advisory Agreement between U.S. Trust and the Company
dated February 1, 1991; a Sub-Advisory Agreement dated May 27, 1987 between U.S.
Trust and Foreign and Colonial Asset Management ("FACAM"); a Sub-Advisory
Agreement dated December 15, 1992 between U.S Trust and FACAM; and a Sub-
Advisory Agreement dated February 16, 1994 between U.S. Trust and Foreign and
Colonial Emerging Markets Limited (the "Advisory Agreements");
(f) Resolutions of the Company's Board of Directors appointing
Edgewood Services, Inc. (the "Distributor") as the Company's distributor for the
Funds and approving a Distribution
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Agreement between the Distributor and the Company dated as of August 1, 1995
(the "Distribution Agreement");
(g) Resolutions of the Company's Board of Directors appointing
Federated Administrative Services ("Federated") and Mutual Funds Service Company
("MFSC") as the administrators for the Funds and approving an Administration
Agreement among Federated, MFSC and the Company dated as of August 1, 1995 (the
"Administration Agreement");
(h) The Advisory Agreements, the Distribution Agreement and the
Administration Agreement;
(i) The Company's Notification of Registration filed pursuant to
Section 8(a) of the 1940 Act on Form N-8A with the Securities and Exchange
Commission ("SEC") on August 8, 1984;
(j) Post-Effective Amendment No. 21 to the Company's Registration
Statement on Form N-1A under the 1940 Act and the 1933 Act, as filed with the
SEC on August 1, 1995 (File No. 2-92665) relating to shares of the Company's
Class A Common Stock, $.001 par value per share, which represent interests in
the Money Fund; Class B Common Stock, $.001 par value per share, which
represents interests in the Government Money Fund; Class C Common Stock and
Class C Common Stock - Special Series 1, $.001 par value per share, which
represent interests in the Equity Fund; Class D Common Stock, $.001 par value
per share, which represent interests in the Managed Income Fund; Class E Common
Stock and Class E Common Stock - Special Series 1, $.001 par value per share,
which represent interests in the Income and Growth Fund; Class F Common Stock,
$.001 par value per share, which represent
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interests in the International Fund; Class G Common Stock, $.001 par value per
share, which represent interests in the Treasury Money Fund; Class H Common
Stock and Class H Common Stock -Special Series 1, $.001 par value per share,
which represent interests in the Early Life Cycle Fund; Class I Common Stock and
Class I Common Stock - Special Series 1, $.001 par value per share, which
represent interests in the Long-Term Supply of Energy Fund; Class J Common Stock
and Class J Common Stock - Special Series 1, $.001 par value per share, which
represent interests in the Productivity Enhancers Fund; Class K Common Stock and
Class K Common Stock - Special Series 1, $.001 par value per share, which
represent interests in the Environmentally-Related Products and Services Fund;
Class L Common Stock and Class L Common Stock - Special Series 1, $.001 par
value per share, which represent interests in the Aging of America Fund; Class M
Common Stock and Class M Common Stock -Special Series 1, $.001 par value per
share, which represent interests in the Communication and Entertainment Fund;
Class N Common Stock and Class N Common Stock - Special Series 1, $.001 par
value per share, which represent interests in the Business and Industrial
Restructuring Fund; Class O Common Stock and Class O Common Stock - Special
Series 1, $.001 par value per share, which represent interests in the Global
Competitors Fund; Class P Common Stock, $.001 par value per share, which
represent interests in the Emerging Americas Fund; Class Q Common Stock, $.001
par value per share, which represent interests in the
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Pacific/Asia Fund; Class R Common Stock, $.001 par value per share, which
represent interests in the Pan European Fund; Class S Common Stock, $.001 par
value per share, which represent interests in the Short-Term Government
Securities Fund; and Class T Common Stock, $.001 par value per share, which
represent interests in the Intermediate-Term Managed Income Fund (such shares
and shares of the Company hereafter classified by the Company's Board of
Directors are hereinafter collectively called "Shares"), and all amendments
thereto; and
(k) The Company's most recent prospectuses (such prospectuses, as
currently in effect, and all amendments and supplements thereto and future
versions thereof are herein called the "Prospectuses").
U.S. Trust will furnish Sub-Transfer Agent from time to time with
copies of all amendments of or supplements to the foregoing, if any, and with
comparable documents with respect to any Fund of the Company organized after the
date of this Agreement that is covered by this Agreement. U.S. Trust shall also
deliver to Sub-Transfer Agent the following documents on or before the effective
date of any increase or decrease in the total number of Shares authorized to be
issued by the Company: (a) a certified copy of the amendment of the Articles of
Incorporation giving effect to such increase or decrease, and (b) in the case of
an increase, if the appointment of U.S. Trust was theretofore expressly limited,
a certified copy of a resolution
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of the Board of Directors of the Company increasing the authority of U.S. Trust.
4. SERVICES PROVIDED
(a) Sub-Transfer Agent will provide the following services subject to
the control, direction and supervision of U.S. Trust and in compliance with the
objectives, policies and limitations set forth in the Company's Registration
Statement, Charter and By-Laws; applicable laws and regulations; and all
resolutions and policies implemented by the Board of Directors.
The following is a general description of the transfer agency services
Sub-Transfer Agent shall provide to the Company.
A. SHAREHOLDER RECORDKEEPING. Maintain records showing for each
Fund shareholder the following: (i) name, address, appropriate
tax certification and tax identifying number; (ii) number of
shares of each Fund; (iii) historical information including, but
not limited to, dividends paid and date and price of all
transactions including individual purchase and redemptions and
appropriate supporting documents; and (iv) any dividend
reinvestment order, application, dividend to a specific address
and correspondence relating to the current maintenance of the
account.
B. SHARE ISSUANCE. Record the issuance of shares of each Fund.
Except as specifically agreed in writing between U.S. Trust and
Sub-Transfer Agent,
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Sub-Transfer Agent shall have no obligation when countersigning
and issuing and/or crediting shares to take cognizance of any
other laws relating to the issue and sale of such shares except
insofar as policies and procedures of the Stock Transfer
Association recognize such laws. Sub-Transfer Agent shall notify
U.S. Trust and the Company in case any proposed issue of shares
by the Company shall result in an over-issuance. In case any
issue of shares would result in such an over-issue, Sub-Transfer
Agent shall refuse to issue said shares and shall not countersign
and issue certificates (if any) for such shares.
C. PURCHASE ORDERS. Process all orders for the purchase of shares
of the Company in accordance with the Company's Prospectuses,
including electronic transmissions, which the Company has
acknowledged it has authorized. Upon receipt of any check or
other payment for purchase of shares of the Company from an
investor, Sub-Transfer Agent will (i) stamp the order or other
documentation with the date and time of receipt, (ii) forthwith
process the same for collection, (iii) determine the amounts
thereof due the
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Company, and notify U.S Trust and the Company of such
determination and deposit, such notification to be given on a
daily basis of the total amounts determined and deposited to the
Company's custodian bank account during such day. Sub-Transfer
Agent shall then credit the share account of the investor with
the number of Fund shares to be purchased made on the date such
payment is received by Sub-Transfer Agent, as set forth in the
Company's Prospectus and shall promptly mail a confirmation of
said purchase to the investor, all subject to any instructions
which the Company or U.S. Trust may give to Sub-Transfer Agent
with respect to the timing or manner of acceptance of orders for
shares relating to payments so received by it. Any purchase
order received by Sub-Transfer Agent, which is not in good order
will be rejected immediately.
D. REDEMPTION ORDERS. Receive and stamp with the date and time of
receipt all requests for redemptions or repurchase of shares held
in certificate or non-certificate form, and process redemptions
and repurchase requests as follows: (i) if such certificate or
redemption request complies with the applicable standards
approved by the Company, Sub-Transfer Agent shall on each
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business day notify the Company of the total number of shares
presented and covered by such requests received by Sub-Transfer
Agent on such day; (ii) within the time specified in the
Prospectus and if not so specified on or prior to the seventh
calendar day succeeding any such requests received by Sub-
Transfer Agent, shall notify The Chase Manhattan Bank, N.A. (the
"Custodian"), subject to instructions from the Company or U.S.
Trust, to transfer monies to such account as designated by Sub-
Transfer Agent for such payment to the redeeming shareholder of
the applicable redemption or repurchase price; (iii) if any such
certificate or request for redemption of repurchase does not
comply with applicable standards, Sub-Transfer Agent shall
promptly notify the investor of such fact, together with the
reason therefor, and shall effect such redemption at the
Company's price next determined after receipt of documents
complying with said standards.
E. TELEPHONE ORDERS. Process redemptions, exchanges and transfers
of Fund shares upon telephone instructions from qualified
shareholders in accordance with the procedures set forth in the
Company's Prospectuses. The administrator shall
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be permitted to redeem, exchange and/or transfer Fund shares from
any account for which such services have been authorized,
including electronic transmissions.
F. TRANSFER OF SHARES. Upon receipt by Sub-Transfer Agent of
documentation in proper form to effect a transfer of shares,
including in the case of shares for which certificates have been
issued the share certificates in proper form for transfer, Sub-
Transfer Agent will register such transfer on the Company's
shareholder records maintained by Sub-Transfer Agent pursuant to
instructions received from the transferor, cancel the
certificates representing such shares, if any, and if so
requested, countersign, register, issue and mail by first class
mail new certificates for the same or a smaller whole number of
shares.
G. SHAREHOLDER COMMUNICATIONS. Address and mail all communications
by the Company to its shareholders promptly following the
delivery by the Company or U.S. Trust of the material to be
mailed.
H. PROXY MATERIALS. Prepare shareholder lists, mail and certify as
to the mailing of proxy materials, receive the tabulated proxy
cards, render periodic reports to the Company and U.S. Trust on
the progress of such tabulation, and provide the
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Company with inspectors of election at any meeting of
shareholders.
I. SHARE CERTIFICATES. If a shareholder of the Company requests a
certificate representing his shares, Sub-Transfer Agent as sub-
transfer agent will countersign and mail, a share certificate to
the investor at his/her address as it appears on the Company's
transfer books. Sub-Transfer Agent shall supply, at the expense
of the Company a supply of blank share certificates. The
certificates shall be properly signed, manually or by facsimile,
as authorized by the Company, and shall bear the Company's seal
or facsimile; and notwithstanding the death, resignation or
removal of any officers of the Company authorized to sign
certificates, Sub-Transfer Agent may, until otherwise directed by
the Company or U.S. Trust, continue to countersign certificates
which bear the manual or facsimile signature of such officer.
J. RETURNED CHECKS. In the event that any check or other order for
the payment of money is returned unpaid for any reason, Sub-
Transfer Agent will take such steps, including redepositing the
check for collection or returning the check to the investor, as
Sub-Transfer Agent may, at its discretion, deem appropriate and
notify the
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Company and U.S. Trust of such action, or as the Company or U.S.
Trust may instruct. However, subject to Paragraph 7(b) below,
the Company remains ultimately liable for any returned checks of
its shareholders.
K. SHAREHOLDER CORRESPONDENCE. Acknowledge all correspondence from
shareholders relating to their share accounts and undertake such
other shareholder correspondence as may from time to time be
mutually agreed upon.
L. TAX REPORTING. Sub-Transfer Agent shall issue appropriate
shareholder tax forms on an annual basis.
M. DIVIDEND DISBURSING. Sub-Transfer Agent will serve as the
Company's dividend disbursing agent. Sub-Transfer Agent will
prepare and mail checks, place wire transfers of credit income
and capital gain payments to shareholders. The Company or U.S.
Trust will advise Sub-Transfer Agent of the declaration of any
dividend or distribution and the record and payable date thereof
at least five (5) days prior to the record date. Sub-Transfer
Agent will, on or before the payment date of any such dividend or
distribution, notify the Company's Custodian of the estimated
amount required to pay any portion of such dividend or
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distribution payable in cash, and on or before the payment date
of such distribution, the Company will instruct its Custodian to
make available to Sub-Transfer Agent sufficient funds for the
cash amount to be paid out. If a shareholder is entitled to
receive additional shares by virtue of any such distribution or
dividend, appropriate credits will be made to each shareholder's
account.
(b) Sub-Transfer Agent will also:
(i) provide office facilities with respect to the provision of the
services contemplated herein (which may be in the offices of Sub-Transfer Agent
or a corporate affiliate of Sub-Transfer Agent);
(ii) provide the services of individuals to serve as officers of the
Company who will be designated by Sub-Transfer Agent and elected by the
Company's Board of Directors subject to reasonable Board approval;
(iii) provide or otherwise obtain personnel sufficient, in Sub-
Transfer Agent's sole discretion, for provision of the services contemplated
herein;
(iv) furnish equipment and other materials, which Sub-Transfer Agent,
in its sole discretion, believes are necessary or desirable for provision of the
services contemplated herein; and
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(v) keep records relating to the services provided hereunder in
accordance with the 1940 Act and the rules thereunder. To the extent required
by the 1940 Act and the rules thereunder, Sub-Transfer Agent agrees that all
such records prepared or maintained by Sub-Transfer Agent relating to the
services provided hereunder are the property of the Company and will be
preserved for the periods prescribed under the 1940 Act and the rules
thereunder, maintained at the Company's expense, and made available in
accordance with such Act and rules. Sub-Transfer Agent further agrees to
surrender promptly to the Company upon its request and cease to retain in its
records and files those records and documents created and maintained by Sub-
Transfer Agent pursuant to this Agreement.
5. FEES; EXPENSES; EXPENSE REIMBURSEMENT.
(a) As compensation for the services rendered to the Company for U.S.
Trust pursuant to this Agreement, U.S. Trust shall pay Sub-Transfer Agent
monthly $15.00 per account and subaccount of each Fund of the Company per year
or for any portion of a year plus Sub-Transfer Agent's out-of-pocket expenses
relating to such services, including, but not limited to, expenses of postage,
telephone, TWX rental and line charges, communication forms, and checks and
check processing. Such fees are to be billed monthly and shall be due and
payable upon receipt of the invoice. Upon any termination of this Agreement
before the end of any month, the fee for the part of the month before such
termination shall be prorated according to the
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proportion which such part bears to the full monthly period and shall be payable
upon the date of termination of this Agreement.
(b) For the purpose of determining fees calculated as a function of
the Company's assets, the value of the Company's assets and net assets shall be
computed as required by its Prospectuses, generally accepted accounting
principles, and resolutions of the Board of Directors.
(c) Sub-Transfer Agent may, in its sole discretion, from time to time
employ or associate with such person or persons as may be appropriate to assist
Sub-Transfer Agent in the performance of this Agreement. Such person or persons
may be officers and employees who are employed or designated as officers by both
Sub-Transfer Agent and the Company. The compensation of such person or persons
for such employment shall be paid by Sub-Transfer Agent and no obligation will
be incurred by or on behalf of the Company or U.S. Trust in such respect.
(d) U.S. Trust may request additional services, additional processing,
or special reports. U.S. Trust shall submit such requests in writing together
with such specifications and documentation as may be reasonably required by Sub-
Transfer Agent. If Sub-Transfer Agent elects to provide such services or
arrange for their provision, it shall be entitled to additional fees and
expenses at its customary rates and charges as approved by U.S. Trust.
(e) Sub-Transfer Agent will bear all of its own expenses in connection
with the performance of the services under
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this Agreement except as otherwise expressly provided herein. U.S. Trust agrees
to promptly reimburse Sub-Transfer Agent for any equipment and supplies
specially ordered by or for the Company through Sub-Transfer Agent, and for any
other expenses not contemplated by this Agreement that Sub-Transfer Agent may
incur on the Company's behalf, as consented to by U.S. Trust and the Company
from time to time. Expenses to be incurred in the operation of the Company and
to be borne by the Company, include, but are not limited to: taxes; interest;
brokerage fees and commissions, salaries and fees of officers and directors who
are not officers, directors, shareholders or employees of U.S. Trust, or the
Company's investment adviser, or distributor or other service providers; SEC and
state Blue Sky registration and qualification fees, levies, fines and other
charges; XXXXX filing fees, processing services and related fees; advisory and
administration fees; charges and expenses of pricing and data services,
independent public accountants and custodians; insurance premiums including
fidelity bond premiums; legal expenses; costs of maintenance of corporate
existence; expenses of typesetting and printing of prospectuses for regulatory
purposes and for distribution to current shareholders of the Company (the
Company's distributor to bear the expense of all other printing, production, and
distribution of prospectuses, statements of additional information, and
marketing materials except as otherwise approved by the Board of Directors of
the Company); expenses of printing and production costs of
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shareholders' reports and proxy statements and materials; costs and expenses of
Fund stationery and forms; costs and expenses of special telephone and data
lines and devices; costs associated with corporate, shareholder, and Board
meetings; trade association dues and expenses; and any extraordinary expenses
and other customary Fund expenses. In addition, Sub-Transfer Agent may utilize
one or more independent pricing services, approved from time to time by the
Board, to obtain securities prices and to act as backup to the primary pricing
services, in connection with determining the net asset values of the Company,
and U.S. Trust will reimburse Sub-Transfer Agent for the Company's share of the
cost of such services based upon the actual usage, or a pro rata estimate of the
use, of the services for the benefit of the Company.
(f) All fees, out-of-pocket expenses, or additional charges of Sub-
Transfer Agent shall be billed on a monthly basis and shall be due and payable
upon receipt of the invoice.
Sub-Transfer Agent will render, after the close of each month in which
services have been furnished, a statement reflecting all of the charges for such
month.
6. PROPRIETARY AND CONFIDENTIAL INFORMATION. Sub-Transfer Agent agrees
on behalf of itself and its employees to treat confidentially and as proprietary
information of the Company, all records and other information relative to the
Company's prior, present or potential shareholders, and to not use such records
and information for any purpose other than performance of Sub-
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Transfer Agent's responsibilities and duties hereunder. Sub-Transfer Agent may
seek a waiver of such confidentiality provisions by furnishing reasonable prior
notice to the Company and obtaining approval in writing from the Company, which
approval shall not be unreasonably withheld and may not be withheld where Sub-
Transfer Agent may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities. Waivers of confidentiality are automatically
effective without further action by Sub-Transfer Agent with respect to Internal
Revenue Service levies, subpoenas and similar actions, or with respect to any
request by the Company.
7. DUTIES, RESPONSIBILITIES, AND LIMITATION OF LIABILITY.
(a) In the performance of its duties hereunder, Sub-Transfer Agent
shall be obligated to act in good faith in performing the services provided for
under this Agreement. In performing its services hereunder, Sub-Transfer Agent
shall be entitled to rely on any oral or written instructions, notices or other
communications, including electronic transmissions, from the Company and its
custodians, officers and directors, investors, agents and other service
providers which Sub-Transfer Agent reasonably believes to be genuine, valid and
authorized. Sub-Transfer Agent shall also be entitled to consult with and rely
on the advice and opinions of outside legal counsel retained by the Company, as
necessary or appropriate.
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(b) Sub-Transfer Agent shall not be liable for any error of judgment
or mistake of law or for any loss or expense suffered by the Company or U.S.
Trust, in connection with the matters to which this Agreement relates, except
for a loss or expense caused by or resulting from willful misfeasance, bad faith
or negligence on Sub-Transfer Agent's part in the performance of its duties or
from reckless disregard by Sub-Transfer Agent of its obligations and duties
under this Agreement. Any person, even though also an officer, director,
partner, employee or agent of Sub-Transfer Agent, who may be or become an
officer, director, partner, employee or agent of the Company, shall be deemed
when rendering services to the Company in that capacity or acting on any
business of the Company in that capacity (other than services or business in
connection with Sub-Transfer Agent's duties hereunder) to be rendering such
services to or acting solely for the Company and not as an officer, director,
partner, employee or agent or person under the control or direction of Sub-
Transfer Agent even though paid by Sub-Transfer Agent.
(c) Subject to Paragraphs 7(b) and (d), Sub-Transfer Agent shall not
be responsible for, and U.S. Trust shall indemnify and hold Sub-Transfer Agent
harmless from and against, any and all losses, damages, costs, reasonable
attorneys' fees and expenses, payments, expenses and liabilities arising out of
or attributable to:
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(i) all actions of Sub-Transfer Agent or its officers or agents
required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Sub-Transfer Agent or its officers or
agents of information, records, or documents which are received by Sub-Transfer
Agent or its officers or agents and furnished to it or them by or on behalf of
the Company, and which have been prepared or maintained by the Company or any
third party on behalf of the Company other than Sub-Transfer Agent or any of its
affiliates;
(iii) U.S. Trust's refusal or failure to comply with the terms of this
Agreement or U.S. Trust's lack of good faith, or its actions, or lack thereof,
involving gross negligence or willful misfeasance;
(iv) the material breach of any representation or warranty of U.S.
Trust hereunder;
(v) the legal taping or other form of legal recording of telephone
conversations or other legal forms of electronic communications with investors
and shareholders, or reliance by Sub-Transfer Agent or its officers or agents on
telephone or other electronic instructions of any person acting on behalf of a
shareholder or shareholder account for which telephone or other electronic
services have been authorized;
(vi) the reliance on or the carrying out by Sub-Transfer Agent or its
officers or agents of any proper instructions reasonably believed to be duly
authorized, or
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requests of U.S. Trust or the Company or recognition by Sub-Transfer Agent or
its officers or agents of any share certificates which are reasonably believed
to bear the proper signatures of the officers of the Company and the proper
countersignature of any transfer agent or registrar of the Company;
(vii) any delays, inaccuracies, errors in or omissions from data
provided to Sub-Transfer Agent or its officers or agents by data and pricing
services;
(viii) the offer or sale of shares by the Company in violation of any
requirement under the Federal securities laws or regulations or the securities
laws or regulations of any state, or in violation of any stop order or other
determination or ruling by any Federal agency or any state agency with respect
to the offer or sale of such shares in such state (1) resulting from activities,
actions, or omissions by the Company or its other service providers and agents
other than Sub-Transfer Agent or its officers or agents or any of their
affiliates, or (2) existing or arising out of activities, actions or omissions
by or on behalf of the Company other than by Sub-Transfer Agent or its officers
or agents or any of their affiliates prior to the effective date of this
Agreement;
(ix) any failure of the Company's registration statement to comply
with the 1933 Act and the 1940 Act (including the rules and regulations
thereunder) and any other applicable laws, or any untrue statement of a material
fact or omission of a
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material fact necessary to make any statement therein not misleading in a Fund's
prospectus, unless such failure, misstatement or omission relates to, results
from or otherwise arises in connection with, actions, inactions and/or
information provided by Sub-Transfer Agent or its officers or agents; and
(x) the actions taken by the Company, its investment adviser, and its
distributor in compliance with applicable securities, tax, commodities and other
laws, rules and regulations, or the failure to so comply.
(d) Notwithstanding anything herein to the contrary, U.S. Trust shall
be as fully responsible to the Company for the acts and omissions of any sub-
transfer agent as U.S. Trust is for its own acts and omissions.
8. TERM. This Agreement shall become effective on the date first
hereinabove written. This Agreement may be modified or amended from time to
time by mutual agreement between the parties hereto. This Agreement shall
continue in effect unless terminated by either party on 120 days' prior written
notice provided that should Sub-Transfer Agent fail to be registered pursuant to
Section 17A of the 1934 Act as a transfer agent at any time, the Company or U.S.
Trust may, on written notice to Sub-Transfer Agent, immediately terminate this
Agreement. Upon termination of this Agreement, U.S. Trust shall pay to Sub-
Transfer Agent such compensation and any out-of-pocket or other reimbursable
expenses which may become due or payable under the
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terms hereof as of the date of termination or after the date that the provision
of services ceases, whichever is later.
9. NOTICES. Any notice required or permitted hereunder shall be in
writing and shall be deemed to have been given when delivered in person or by
certified mail, return receipt requested, to the parties at the following
address (or such other address as a party may specify by notice to the other):
If to the Company:
Drinker Xxxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: W. Xxxxx XxXxxxxx, III
Fax: (000) 000-0000
If to U.S. Trust:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
If to Sub-Transfer Agent:
Chase Global Funds Services Company
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxx
Fax: (000) 000-0000
Notice shall be effective upon receipt if by mail, on the date of personal
delivery (by private messenger, courier service or otherwise) or upon confirmed
receipt of telex or facsimile, whichever occurs first.
10. ASSIGNMENT AND DELEGATION. This Agreement shall not be assigned and
the rights, duties and obligations of the parties hereunder may not be
subcontracted or delegated by either of the
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parties hereto without the prior consent in writing of the other party.
11. WAIVER. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver nor
shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
12. FORCE MAJEURE. Sub-Transfer Agent shall not be responsible or liable
for any failure or delay in performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
control, including without limitation, acts of God, earthquakes, fires, floods,
wars, acts of civil or military authorities, or governmental actions, nor shall
any such failure or delay give the Company the right to terminate this
Agreement. During the term of this Agreement, at no additional cost to the
Company or U.S. Trust, Sub-Transfer Agent shall provide a facility capable of
safeguarding the transfer agency and dividend disbursing records of the Company
in case of damage to the primary facility providing those services (the "Back-Up
Facility"). Transfer of the transfer agency and dividend records of the Company
to the Back-Up Facility shall be at Sub-Transfer Agent's expense, shall commence
immediately after damage to the primary facility results in an inability to
provide the transfer agency and dividend disbursing services, and shall be
completed within 72 hours of
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commencement. After the primary facility has recovered, Sub-Transfer Agent
shall again utilize it to provide the transfer agency and dividend disbursing
services to the Company at no additional cost to the Company. Sub-Transfer
Agent shall use reasonable efforts to provide the services described in this
Agreement from the Back-Up Facility.
13. USE OF NAME. Sub-Transfer Agent and U.S. Trust agree not to use the
other's name nor the name of the Company nor the names of such other's nor the
Company's affiliates, designees, or assignees in any prospectus, sales
literature, or other printed material written in a manner not previously
approved by the other or the Company or such other's or the Company's
affiliates, designees, or assignees except where required by the SEC or other
regulatory authorities.
14. AMENDMENTS. This Agreement may be modified or amended from time to
time by mutual written agreement between the parties. No provision of this
Agreement may be changed, discharged, or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, discharge or termination is sought.
15. SEVERABILITY. If any provision of this Agreement is invalid or
unenforceable, the balance of the Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance it shall nevertheless
remain applicable to all other persons and circumstances.
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16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK, INCLUDING THE DETERMINATION OF WHEN AN
"ASSIGNMENT" HAS OCCURRED.
17. THIRD PARTY BENEFICIARY. U.S. Trust and Sub-Transfer Agent expressly
agree that the Company is a third party beneficiary hereof and expressly agree
that the Company may enforce the provisions hereof.
This Agreement may be executed in one or more counterparts and all
such counterparts will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers designated below as of the date first written
above.
CHASE GLOBAL FUNDS SERVICES COMPANY
By:/s/ Xxxxxx X. Xxxxx
---------------------------
Name:Xxxxxx X. Xxxxx
-------------------------
Title:Chairman
------------------------
UNITED STATES TRUST COMPANY
OF NEW YORK
By:/s/ Xxxxxxx X. Xxxxx
---------------------------
Name:Xxxxxxx X. Xxxxx
-------------------------
Title:Executive Vice President
------------------------
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