Exhibit 9(c)
MUTUAL FUNDS TRANSFER AGENCY AGREEMENT
AGREEMENT made as of September 1, 1995 by and between UST
Master Tax-Exempt Funds, Inc. (the "Company") a Maryland corporation, and
United States Trust Company of New York ("U.S.
Trust"), a New York corporation.
W I T N E S S E T H:
WHEREAS, the Company 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 wishes to retain 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 Chase Global Funds Services Company
("CGFSC"), and the Company acknowledges 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 CGFSC 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. The Company hereby appoints U.S. Trust to serve as transfer
agent, registrar and 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 it
desires to retain U.S. Trust to serve as transfer agent, registrar and dividend
disbursing agent hereunder, the Company shall notify U.S. Trust 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 the Company and U.S. Trust at the
time). U.S. Trust 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 represents and warrants
to the Company 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;
(ii) U.S. Trust is empowered under applicable
laws and by its charter and by-laws to enter into and perform this Agreement;
(iii) all requisite corporate proceedings have
been taken to authorize U.S. Trust to enter into and perform this Agreement;
(iv) U.S. Trust is duly registered as a transfer
agent under Section 17A of the Securities Exchange Act of 1934, as amended (the
"1934 Act"). U.S. Trust shall promptly give written notice to the Company in the
event that its registration is revoked or a proceeding is commenced that could
result in such revocation;
(v) U.S. Trust 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;
(vi) U.S. Trust has, and will continue to have,
access to the facilities, personnel and equipment required to fully perform its
duties and obligations hereunder;
(vii) no legal or administrative proceedings
have been instituted or threatened which would impair U.S. Trust's ability to
perform its duties and obligations under this Agreement; and
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(viii) U.S. Trust's entrance into this Agreement
shall not cause a material breach or be in material conflict with any other
agreement or obligation of U.S. Trust or any law or regulation applicable to
U.S. Trust;
(b) The Company represents and warrants to U.S. Trust that:
(i) the Company is a Maryland corporation, duly
organized and existing and in good standing under the laws of Maryland;
(ii) the Company is empowered under applicable
laws and by its Articles of Incorporation, as supplemented ("Charter"), and
By-Laws, as amended ("By-Laws"), to enter into and perform this Agreement;
(iii) all requisite proceedings have been taken
to authorize the Company to enter into and perform this Agreement;
(iv) the Company is an investment company
properly registered under the 1940 Act;
(v) a registration statement under the
Securities Act of 1933, as amended (the "1933 Act") and the 1940 Act on Form
N-1A has been filed and will be effective and will remain effective during the
term of this Agreement, and all necessary filings under the laws of the states
will have been made and will be current during the term of this Agreement;
(vi) no legal or administrative proceedings have
been instituted or threatened which would impair the Company's
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ability to perform its duties and obligations under this Agreement;
(vii) the Company's registration statement
complies in all material respects with the 1933 Act and the 1940 Act (including
the rules and regulations thereunder) and none of the Company's prospectuses
contain any untrue statement of material fact or omit to state a material fact
necessary to make the statements therein not misleading; and
(viii) the Company's entrance into this
Agreement shall not cause a material breach or be in material conflict with any
other agreement or obligation of the Company or any law or regulation applicable
to it.
3. DELIVERY OF DOCUMENTS. The Company has furnished U.S. Trust 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 this Agreement;
(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;
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(e) Resolutions of the Company's Board of Directors appointing
U.S. Trust as the investment adviser to the Company's Tax-Exempt Money,
Intermediate-Term Tax-Exempt, Long-Term Tax-Exempt, New York Intermediate-Term
Tax-Exempt, California Intermediate-Term Tax-Exempt and Short-Term Tax-Exempt
Securities 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 as of February 6,
1985, as amended; and an Investment Advisory Agreement between U.S. Trust and
the Company dated as of May 11, 1990, as amended (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 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;
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(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 31, 1984;
(j) Post-Effective Amendment No. 18 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. 2-93068) relating to shares of
the Company's Class A Common Stock, $.001 par value per share, which represent
interests in the Tax-Exempt Money Fund; Class B Common Stock, $.001 par value
per share, which represent interests in the Intermediate-Term Tax-Exempt Fund;
Class C Common Stock, $.001 par value per share, which represent interests in
the Long-Term Tax-Exempt Fund; Class D Common Stock, $.001 par value per
share, which represent interests in the New York Intermediate-Term Tax-Exempt
Fund; Class E Common Stock, $.001 par value per share, which represent
interests in the California Intermediate-Term Tax-Exempt Fund; and Class F
Common Stock, $.001 par value per share, which represent interests in the
Short-Term Tax-Exempt Securities 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").
The Company will furnish U.S. Trust from time to time
with copies of all amendments of or supplements to the foregoing,
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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.
The Company shall also deliver to U.S. Trust 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 of the
Board of Directors of the Company increasing the authority of U.S. Trust.
4. SERVICES PROVIDED
(a) U.S. Trust will provide the following services subject
to the control, direction and supervision of the Board of Directors 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 U.S. Trust 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
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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 the Company, U.S. Trust
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. U.S. Trust shall notify 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, U.S. Trust 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 acknowledges it
has authorized. Upon receipt of
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any check or other payment for purchase of shares
of the Company from an investor, U.S. Trust 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 Company, and notify 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.
U.S. Trust 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 U.S. Trust, 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 may give to U.S.
Trust 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 U.S. Trust, 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
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redemptions and repurchase requests as follows: (i)
if such certificate or redemption request complies
with the applicable standards approved by the
Company, U.S. Trust shall on each business day
notify the Company of the total number of shares
presented and covered by such requests received by
U.S. Trust 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 U.S. Trust, shall
notify The Chase Manhattan Bank, N.A. (the
"Custodian"), subject to instructions from the
Company, to transfer monies to such account as
designated by U.S. Trust 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, U.S. Trust 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
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accordance with the procedures set forth in the
Company's Prospectuses. The administrator shall 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 U.S. Trust 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, U.S.
Trust will register such transfer on the Company's
shareholder records maintained by U.S. Trust
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 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
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reports to the Company on the progress of such
tabulation, and provide the 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, U.S. Trust as Transfer Agent or CGFSC 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. U.S. Trust 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, U.S.
Trust and/or CGFSC may, until otherwise directed
by the Company, 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, U.S. Trust will take such
steps, including redepositing the check for
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collection or returning the check to the investor,
as U.S. Trust may, at its discretion, deem
appropriate and notify the Company of such action,
or as the Company 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. U.S. Trust shall issue appropriate
shareholder tax forms on an annual basis.
M. DIVIDEND DISBURSING. U.S. Trust will serve as the
Company's dividend disbursing agent. U.S. Trust
will prepare and mail checks, place wire transfers
of credit income and capital gain payments to
shareholders. The Company will advise U.S. Trust 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. U.S. Trust 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 U.S.
Trust 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) U.S. Trust will also:
(i) provide office facilities with respect to
the provision of the services contemplated herein (which may be in the offices
of U.S. Trust or a corporate affiliate of U.S. Trust);
(ii) provide the services of individuals to serve
as officers of the Company who will be designated by U.S. Trust and elected by
the Board of Directors subject to reasonable Board approval;
(iii) provide or otherwise obtain personnel
sufficient, in U.S. Trust's sole discretion, for provision of the
services contemplated herein;
(iv) furnish equipment and other materials, which
U.S. Trust, in its sole discretion, believes are necessary or desirable for
provision of the services contemplated herein; and
(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
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thereunder, U.S. Trust agrees that all such records prepared or maintained by
U.S. Trust 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. U.S. Trust 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 U.S.
Trust pursuant to this Agreement.
5. FEES; EXPENSES; EXPENSE REIMBURSEMENT.
(a) As compensation for the services rendered to the
Company pursuant to this Agreement, the Company shall pay U.S. Trust monthly
$15.00 per account and subaccount of each Fund of the Company per year or for
any portion of a year plus U.S. Trust'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. The Company shall also pay U.S. Trust monthly any
fees and expenses charged by any sub-transfer agent other than CGFSC provided
that the sub-transfer agent and the fees and expenses charged by that
sub-transfer agent have been approved by the Company's Board of Directors.
Upon any termination of this Agreement before the end of any month, the fee
for the part of the month before such
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termination shall be prorated according to the 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) U.S. Trust may, in its sole discretion, from time to
time employ or associate with such person or persons as may be appropriate to
assist U.S. Trust in the performance of this Agreement. Such person or persons
may be officers and employees who are employed or designated as officers by
both U.S. Trust and the Company. The compensation of such person or persons
for such employment shall be paid by U.S. Trust and no obligation will be
incurred by or on behalf of the Company in such respect.
(d) The Company may request additional services, additional
processing, or special reports. The Company shall submit such requests in
writing together with such specifications and documentation as may be
reasonably required by U.S. Trust. If U.S. Trust 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 the
Company's Board of Directors.
(e) U.S. Trust will bear all of it own expenses in
connection with the performance of the services under this
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Agreement except as otherwise expressly provided herein. The Company agrees to
promptly reimburse U.S. Trust for any equipment and supplies specially ordered
by or for the Company through U.S. Trust, and for any other expenses not
contemplated by this Agreement that U.S. Trust may incur on the Company's
behalf, as consented to by 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 shareholders'
reports and proxy statements and materials; costs
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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, U.S.
Trust 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 the Company will reimburse U.S. Trust 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 U.S. Trust shall be billed on a monthly basis and shall be due and payable
upon receipt of the invoice.
U.S. Trust 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. U.S. Trust 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 U.S. Trust's
responsibilities and duties hereunder. U.S. Trust may seek a waiver of such
confidentiality provisions by furnishing
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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 U.S. Trust 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 U.S. Trust 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, U.S.
Trust shall be obligated to act in good faith in performing the services
provided for under this Agreement. In performing its services hereunder, U.S.
Trust 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 U.S. Trust reasonably believes to be genuine, valid
and authorized. U.S. Trust 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.
(b) Except as provided herein, U.S. Trust shall not be
liable for any error of judgment or mistake of law or for any loss or expense
suffered by the Company, in connection with the matters to which this
Agreement relates, except for a loss or
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expense caused by or resulting from willful misfeasance, bad faith or
negligence on U.S. Trust's part in the performance of its duties or from
reckless disregard by U.S. Trust of its obligations and duties under this
Agreement. Any person, even though also an officer, director, partner,
employee or agent of U.S. Trust, 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
U.S. Trust'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 U.S. Trust even though paid
by U.S. Trust.
(c) Subject to Paragraphs 7(b) and (d), U.S. Trust shall not
be responsible for, and the Company shall indemnify and hold U.S. Trust
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:
(i) all actions of U.S. Trust or its officers
or agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by U.S. Trust or its
officers or agents of information, records, or documents which are received by
U.S. Trust or its officers or agents and furnished to it or them by or on
behalf of the Company, and which
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have been prepared or maintained by the Company or any third party on behalf
of the Company other than U.S. Trust or any of its affiliates;
(iii) the Company's refusal or failure to comply
with the terms of this Agreement or the Company'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 the Company 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 U.S. Trust 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
U.S. Trust or its officers or agents of any proper instructions reasonably
believed to be duly authorized, or requests of the Company or recognition by
U.S. Trust 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;
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(vii) any delays, inaccuracies, errors in or
omissions from data provided to U.S. Trust 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 U.S. Trust 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 U.S. Trust 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 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 U.S.
Trust or its officers or agents; and
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(x) the actions taken by the Company, its
investment adviser (other than U.S. Trust or its officers or agents or any of
their affiliates), 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 U.S. Trust fail to be registered pursuant
to Section 17A of the 1934 Act as a transfer agent at any time, the Company
may, on written notice to U.S. Trust, immediately terminate this Agreement.
Upon termination of this Agreement, the Company shall pay to U.S. Trust such
compensation and any out-of-pocket or other reimbursable expenses which may
become due or payable under the 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
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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
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
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 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.
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12. FORCE MAJEURE. U.S. Trust 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, U.S. Trust 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 U.S. Trust'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 commencement. After the primary facility
has recovered, U.S. Trust shall again utilize it to provide the transfer
agency and dividend disbursing services to the Company at no additional cost
to the Company. U.S. Trust shall use reasonable efforts to provide the
services described in this Agreement from the Back-Up Facility.
13. USE OF NAME. The Company and U.S. Trust agree not to use the
other's name nor the names of such other's affiliates, designees, or assignees
in any prospectus, sales literature, or
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other printed material written in a manner not previously approved by the
other or such other'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.
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.
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.
UST MASTER TAX-EXEMPT FUNDS, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
UNITED STATES TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
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