(Late Trading)
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT ("Agreement") is made as of _________________, between
_________________ ("Organization") and the registered investment company ("Fund
Company"), on its own behalf and on behalf of each of the series or classes of
shares, if any, listed on Schedule I, as amended from time to time (such series
or classes being referred to as the "Fund(s)").
WHEREAS, the Fund Company wishes to have Organization perform certain
recordkeeping, shareholder communication, and other services for each Fund;
WHEREAS, Organization and the Fund Company desire to facilitate the
purchase, exchange and redemptions of shares of the Funds (the "Shares"),
subject to the terms and conditions of this Agreement; and
WHEREAS, the Fund Company and Organization desire Organization to serve as
the Fund Company's agent solely for purpose of receiving and transmitting orders
and instructions regarding the purchase, exchange and redemption of Shares,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the parties hereto agree as follows.
1. Appointment of Organization; Standards of Services . Fund Company hereby
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appoints Organization, as an independent contractor, as its agent for purposes
of receiving and transmitting orders and instructions regarding the purchase,
exchange and redemption of Shares. Organization shall also perform the services
(the "Services") specified in Schedule II hereto for the Funds and Organization
accepts such appointment on the terms and conditions set forth herein.
All services to be rendered or arranged for by the Organization hereunder
shall be performed in a professional, competent and timely manner. The details
of the operating standards and procedures to be followed in performance of the
services described above shall be determined from time to time by agreement
between the Organization and the Fund Company. The Fund Company acknowledges
that the Organization's ability to perform on a timely basis certain of its
obligations under this Agreement depends upon the Fund Company's timely delivery
of certain materials and/or information to the Organization. The Fund Company
agrees to use its reasonable efforts to provide such materials to the
Organization in a timely manner.
2. Pricing Information. Fund Company will furnish, or caused to be furnished,
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to Organization on each business day that the Funds are open for business
("Business Day") with: (i) net asset value information as of the close of
trading on the New York Stock Exchange or as at such other time at which a
Fund's net asset value is calculated as specified in such Fund's prospectus
("Close of Trading"); and (ii) in the case of fixed-income funds, the daily
accrual or interest rate factor (mil rate). The Fund Company shall provide such
information to Organization by [ ] Eastern Time ("ET") on the same
Business Day.
3. Orders for Purchase, Redemption, or Exchange. Organization, as agent of the
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Fund Company, shall (i) receive for acceptance as of the Close of Trading on
each Business Day (the "Trade Date") orders and instructions for the purchase,
redemption or exchange of Shares, and (ii) upon acceptance of any such orders
and instructions, communicate such acceptance to the Fund Company and transmit
to the Fund Company orders and instructions to purchase, exchange or redeem
Shares. On each business day, Organization shall aggregate and calculate the
net purchase and redemption amounts for such orders and communicate each such
net aggregate amounts to the Fund Company prior to [______] ET on the Business
Day next succeeding the
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Trade Date. All communications herein shall be by facsimile or other form of
written electronic transmission mutually agreeable to the parties. If provided
in the applicable shareholder's account application, dividends, capital gains,
and other distributions will be automatically reinvested on the distribution
payment date at net asset value in accordance with each Fund's then current
prospectus.
4. Settlement.
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(a) Purchases. Organization will transmit the purchase price of each
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purchase order to the Fund Company in accordance with written instructions
provided by the Fund Company to Organization for the applicable Fund by wire
transfer prior to [ ] ET, on the next Business Day following the Trade
Date. Organization agrees that if it fails to (i) wire the purchase price to
the Fund Company before such [ ] ET deadline or (ii) provide the Fund
Company with a Federal Funds wire system reference number evidencing the wire
transfer of the purchase price to the Fund Company prior to such [ ] ET
deadline, it will indemnify and hold harmless the Fund Company for which such
purchase order was placed from any liabilities, costs and damages either may
suffer as a result of such failure. The cost associated with any delayed wire is
the responsibility of Organization.
Redemptions. The Fund Company will transmit to Organization the
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proceeds of all redemption orders placed by Organization by [ ] ET on
the Business Day immediately following the Trade Date by wire transfer on that
Business Day. Should a Fund need to extend the settlement on a trade, the Fund
Company will contact Organization to discuss the extension. Each wire transfer
of redemption proceeds shall indicate, on the Federal Funds wire system, the
amount thereof attributable to each Fund; provided, however, that if the number
of entries would be too great to be transmitted through the Federal Funds wire
system, the Fund Company shall,
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on the day the wire is sent, fax such entries to Organization or if possible,
send via direct or indirect systems access.
5. Compliance with Laws. At all times the Fund Company and Organization shall
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comply with all laws, rules and regulations, to the extent applicable, by virtue
of entering into this Agreement or otherwise.
6. Representations with Respect to the Funds. Organization shall not make, nor
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shall it allow its affiliates or employees to make representations concerning a
Fund Company, Fund or Shares, except those contained in (i) the then current
prospectus of a Fund, (ii) current sales literature created by or on behalf of
the Funds, or (iii) current sales literature created by Organization which has
been submitted to, and approved in writing, by the Fund Company or its agents
prior to the use or distribution of such sales literature by Organization, its
affiliates or agents.
7. Use of the Organization's Name; Use of Fund Company's Name. The Fund
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Company shall not use the name of the Organization (or any of its affiliates or
subsidiaries) in any prospectus, sales literature or other material relating to
the Fund Company in a manner not approved by the Organization prior thereto in
writing, such approval to not be unreasonably withheld; provided, however, that
the approval of the Organization shall not be required for any use of its name
which merely refers in accurate and factual terms to its appointment hereunder
and the terms hereof or which is required by law, including without limitation,
by the Securities and Exchange Commission or any state securities authority or
any other appropriate regulatory, governmental or judicial authority.
The Organization shall not use the name of Fund Company in any manner not
approved thereto in writing, such approval to not be unreasonably withheld;
provided, however, that the approval of Fund Company shall not be required for
the use of Fund Company's name in
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connection with communications permitted by Section 6 hereof or (subject to
Section 6, to the extent the same may be applicable) for any use of the Fund
Company's name which merely refers in accurate and factual terms to the Fund
Company in connection with the Organization's role hereunder or which is
required by law, including without limitation, by the Securities and Exchange
Commission or any state securities authority or any other appropriate
regulatory, governmental or judicial authority.
8. Security. The Organization represents and warrants that to the best of its
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knowledge, the various procedures and systems which it has implemented with
regard to safeguarding from loss or damage attributable to fire, theft or any
other cause the Organization's records, data, equipment, facilities and other
property used in the performance of its obligations hereunder are adequate and
that it will make such changes therein from time to time as in its judgment are
required for the secure performance of its obligations hereunder. The parties
shall review such systems and procedures on a periodic basis, and the Fund
Company shall from time to time specify the types of records and other data of
the Fund Company to be safeguarded in accordance with this Section 8.
9. Reports. Quarterly, and more frequently to the extent requested by the Fund
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Company from time to time, the Organization agrees that it will provide the
administrator of the Fund Company with a written report of the amounts expended
by the Organization pursuant to this Agreement and the purposes for which such
expenditures were made. Such written reports shall be in a form satisfactory to
the Fund Company and shall supply all information necessary for the Fund Company
to discharge its responsibilities under applicable laws and regulations.
10. Recordkeeping.
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(a) Obligations Under Section 31. The Organization shall maintain records
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in a form reasonably acceptable to the Fund Company and in compliance with
applicable laws and the
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rules and regulations of the Securities and Exchange Commission, including but
not limited to the record-keeping requirements of Section 31 of the Investment
Company Act of 1940, as amended (the "1940 Act") and the rules thereunder. Such
records will be made available at the Fund Company's reasonable request for
inspection and use by the Fund Company, representatives of the Fund Company and
governmental authorities. The Organization agrees that, for so long as it
retains any records in connection with this Agreement, it will meet all
reporting requirements pursuant to the 1940 Act and applicable to the
Organization with respect to such records.
(b) Rules 17a-3 and 17a-4. The Organization shall maintain accurate and
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complete records with respect to services performed by the Organization in
connection with the purchase and redemption of Shares. Such records shall be
maintained in form reasonably acceptable to the Fund Company and in compliance
with the requirements of all applicable laws, rules and regulations, including
without limitation, Rules 17a-3 and 17a-4 under the Securities Exchange Act of
1934, as amended, pursuant to which any dealer of the Shares must maintain
certain records. All such records maintained by the Organization shall be the
property of such dealer and will be made available for inspection and use by the
Fund Company or such dealer upon the request of either. The Organization shall
file with the Securities and Exchange Commission and other appropriate
governmental authorities, and furnish to the Fund Company and any such dealer
copies of, all reports and undertakings as may be reasonably requested by the
Fund Company or such dealer in order to comply with the said rules. If so
requested by any such dealer, the Organization shall confirm to such dealer its
obligations under this Section 10 by a writing reasonably satisfactory to such
dealer.
(c) Transfer of Customer Data. In the event this Agreement is terminated
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or a successor to the Organization is appointed, the Organization shall transfer
to such designee as the
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Fund Company may direct a certified list of the shareholders of the Fund Company
serviced by the Organization (with name, address and tax identification or
Social Security number, if any), a complete record of the account of each such
shareholder and the status thereof, and all other relevant books, records,
correspondence, and other data established or maintained by the Organization
under this Agreement. In the event this Agreement is terminated, the
Organization will use its best efforts to cooperate in the orderly transfer of
such duties and responsibilities, including assistance in the establishment of
books, records and other data by the successor.
(d) Survival of Record-Keeping Obligations. The record-keeping obligations
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imposed in this Section 10 shall survive the termination of this Agreement for a
period of three years.
(e) Obligations Pursuant to Agreement Only. Nothing in this Section 10
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shall be construed so that the Organization would, by virtue of its role
hereunder, be required under applicable law to maintain the records required to
be maintained by it under this Section 10, but is understood that the
Organization has agreed to do so in order to enable the Fund Company and its
dealer or dealers to comply with laws and regulations applicable to them.
11. Representations, Warranties and Covenants. Organization represents,
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warrants, and covenants severally and jointly on behalf of its affiliates and
any agents engaged to perform services hereunder, that:
(a) it has full power and authority under applicable law and has taken all
action necessary, to enter into and perform its obligations and duties under
this Agreement, and that by doing so it will not breach or otherwise impair any
other agreement or understanding with any other person, corporation or other
entity; this Agreement constitutes its legal, valid and binding obligation and
is enforceable against it in accordance with its terms; no consent or
authorization of, filing with or other act by or in respect of any governmental
authority, is required in
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connection with the execution, delivery, performances, validity or
enforceability of this Agreement;
(b) it is registered, shall register or is exempt from registration as a
transfer agent pursuant to Section 17A of the Securities and Exchange Act of
1934, as amended (the "1934 Act") (it being understood by the parties hereto
that failure on the part of Organization to so register, if not exempt from
registration, will constitute a material breach of this Agreement; if required
under applicable regulations, Organization will amend its TA-1 to disclose its
appointment hereunder as a limited purpose agent to the Fund Company;
(c) all purchases, redemptions and exchange orders and instructions with
respect to Shares received by it by [_______] ET on any Business Day and
transmitted to the Fund Company for processing pursuant to this Agreement will
have been received and time stamped prior to the Close of Trading on such
Business Day;
(d) all purchases, redemptions and exchanges of Shares contemplated by
this Agreement shall be effected by Organization in accordance with each Fund's
then current prospectus;
(e) it will comply with all applicable material state and federal laws and
with the rules and regulations of authorized regulatory agencies thereunder in
connection with performance of its services hereunder; and
(f) it will promptly notify Fund Company in the event that it is unable,
for any reason, to perform any of its duties or obligations under this Agreement
or there is a material failure to comply with its representation, warranty or
covenant made herein above.
The Fund Company represents, warrants, and covenants that:
(a) it has full power and authority under applicable law, and has taken
all action necessary, to enter into and perform its duties and obligations under
this Agreement and that by
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doing so it will not breach or otherwise impair any other agreement or
understanding with any other person, corporation or other entity;
(b) it will comply with all applicable material state and federal laws and
with the rules and regulations of authorized regulatory agencies thereunder;
(c) it will promptly notify Organization in the event that it is unable,
for any reason, to perform any of its duties or obligations under this Agreement
or there is a material failure to comply with its representations, warranties or
covenants made herein above; and
(d) the Funds are registered as investment companies under the 1940 Act
and the Shares are registered under the Securities Act of 1933, as amended.
12. Indemnification. Each party shall indemnify and hold harmless the other,
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and the other's affiliates, agents, control persons, officers, directors and
employees, from any claim, demand, loss, expense or cause of action ("Claim")
resulting from (a) the bad faith or negligence of the indemnifying party or its
affiliates, control persons, officers, directors or employees in carrying out
their obligations under this Agreement, or (b) breach at any time of its
representations, warranties or covenants hereunder by the indemnifying party.
Such indemnification shall survive the termination of this Agreement.
In any case in which an indemnifying party may be asked to indemnify or
hold the indemnified party harmless, the indemnifying party shall be advised of
all pertinent facts concerning the situation in question and the indemnified
party shall use reasonable care to identify and notify the indemnifying party
promptly concerning any situation which presents or appears likely to present a
claim for indemnification against the indemnifying party. The indemnifying party
shall have the option to defend the indemnified party against any Claim that may
be the subject of indemnification hereunder. In the event that the indemnifying
party elects to defend against such Claim, the defense shall be conducted by
counsel chosen by the
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indemnifying party and satisfactory to the indemnified party. The indemnified
party may retain additional counsel at its expense. Except with the prior
written consent of the indemnifying party, the indemnified party shall not
confess any Claim or make any compromise in any case in which the indemnifying
party will be asked to indemnify the indemnified party.
13. Fees and Expenses. (a) Fees from Fund Company. Each party shall bear all
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expenses incidental to the performance of its duties and obligations under this
Agreement. In consideration for the services described in this Agreement, the
Organization shall receive fees to be paid in arrears periodically (but in no
event less frequently than semi-annually) at annual rates of up to .40% (.25% in
the case of the Technology Fund and .15% in the case of the Government Money and
Money Funds) of the average daily net assets of the Shares of the Funds set
forth on Schedule I hereto for whom the Organization is the holder or agent of
record or with whom it maintains a servicing relationship. For purposes of
determining the fees payable to the Organization hereunder, the value of the
Fund Company's net assets shall be computed in the manner specified in the Fund
Company's prospectus(es) for computation of the net asset value of the Fund
Company's Shares. The above fees constitute all of the fees to be paid to the
Organization by the Fund Company with respect to the services contemplated
hereby.
(b) Fees from Customers. It is agreed that the Organization may impose
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certain conditions on its customers ("Customers"), in addition to or different
from those imposed by the Fund Company, such as requiring a minimum initial
investment or charging Customers direct fees for the same or similar services as
are provided hereunder by the Organization (which fees may either relate
specifically to the Organization's services with respect to the Fund Company or
generally cover services not limited to those with respect to the Fund Company).
The Organization shall xxxx Customers directly for such fees. In the event the
Organization charges Customers such fees, it shall notify the Fund Company in
advance and make appropriate prior
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written disclosure (such disclosure to be in accordance with all applicable
laws) to Customers of any such fees charged to the Customer. To the extent
required by applicable rules and regulations of the Securities and Exchange
Commission, the Fund Company shall make written disclosure of the fees paid or
to be paid to the Organization pursuant to Section 13(a) of this Agreement. It
is understood, however, that in no event shall the Organization have recourse or
access to the account of any shareholder of the Fund Company except to the
extent expressly authorized by law or by such shareholder, or to any assets of
the Fund Company, for payment of any direct fees referred to in this Section
13(b).
14. Termination of Agreement. This Agreement may be terminated at any time by
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any party hereto upon thirty (30) days prior written notice to the other party
hereto or upon such shorter notice as is required by law, order or regulatory or
self-regulatory authority with jurisdiction over the terminating party or at
such time as the parties hereto may agree to in writing. Notwithstanding the
foregoing, this Agreement may be terminated immediately upon a material breach
by any party hereto not cured within thirty (30) days after notice from the
other party hereto.
15. Notice. Each notice required by this Agreement shall be given in writing
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and delivered personally or mailed by certified mail or courier service, or sent
by confirming telegram, cable, telex or facsimile sending device, to the
intended recipient thereof at the following address: If to Organization, to:
________________________________________.
If to the Fund Company, to: Xxx Xxxxxxxx, United States Trust Company of New
York, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, with a
copy to Xxxxx Xxxxx, United States Trust Company of New York, 000 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
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If notice is sent by confirming telegram, cable, telex or facsimile sending
device, it shall be deemed given when delivered. If notice is sent by documented
overnight delivery service or registered or certified mail, postage prepaid,
return receipt requested, it shall be deemed to have been given on the day it is
delivered.
16. Confidentiality. Except as otherwise provided under this Agreement, all
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notifications, reports, books, records, data and other information supplied by
one party to the other in connection with this Agreement (collectively,
"Information") shall remain the property of the party supplying such information
and, except as otherwise provided hereunder, shall be kept confidential by the
other party; provided, however, that copies of any such information may be
retained by a party to the extent required by applicable law, court order, or
the reasonable internal polices of a party.
Organization and the Fund Company acknowledge and understand the
competitive value and confidential nature of internal, non-public financial and
business information of the other parties hereto. The parties hereto also
understand that such information is to be considered as confidential,
proprietary and trade secrets of each other party and its affiliates.
Organization and the Fund Company agree to use their best efforts (the same
being not less than that employed to protect their own confidential and
proprietary information) to safeguard such information and to prevent the
unauthorized, negligent or inadvertent use or disclosure thereof. Except as
otherwise provided hereunder, neither Organization nor the Fund Company shall,
without the prior written approval of an officer of another affected party,
directly or indirectly, disclose information to any person or business entity
except for a limited number of employees of each party on a need-to-know basis.
Notwithstanding anything in this Agreement to the contrary, the parties hereto
may disclose any such information: (a) as may be legally required by a court or
governmental agency or entity; (b) which is or becomes available to the general
public through no act of, failure to act
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by, or fault of, the disclosing party; (c) which is subsequently disclosed to a
party hereto on a non-confidential basis by a third party not having a
confidential relationship with another party hereto which rightfully acquired
such information; or (d) as independently developed by a party hereto.
17. Complete Agreement. This Agreement contains the full and complete
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understanding of the parties with respect to the subject matter hereof and
supersedes all prior representations, promises, statements, arrangements,
agreements, warranties and understandings among the parties with respect to the
subject matter hereof, whether oral or written, express or implied.
18. Modification and Waiver. This Agreement may be modified or amended, and its
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terms may be waived, only by a writing signed by each of the parties hereto;
provided, however, that Schedule I hereto may be amended in writing, without the
need for signatures of the parties hereto, by the Fund Company's delivery of an
amended Schedule I to Organization at least thirty (30) days in advance of the
effective date of any such amended Schedule I, provided that this Agreement
shall immediately cease to apply with respect to any Fund at such time as Shares
of such Fund are no longer offered to the public (except that this Agreement
shall continue to apply with respect to accounts in such Fund created, and to
purchases and redemptions of such Fund made prior to cessation of public
offering).
Any valid waiver of a provision set forth herein shall not constitute a
waiver of any other provision of this Agreement. In addition, any such waiver
shall constitute a present waiver of such provision only and shall not
constitute a permanent, future waiver of such provision.
19. Counterparts. This Agreement may be executed in several counterparts, each
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of which shall be an original but all of which together shall constitute one and
the same instrument.
20. Assignment. This Agreement shall not be assigned by a party hereto without
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the prior written consent of the other parties hereto.
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21. Headings. The headings of this Agreement are for reference only and shall
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not otherwise affect the interpretation or construction hereof.
22. Non-Exclusivity. Each of the parties hereto acknowledges and agrees that
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this Agreement and the arrangement described herein are intended to be non-
exclusive and that each of the parties is free to enter into similar agreements
and arrangements with other entities. Organization further acknowledges that
nothing contained herein shall prohibit the Fund Company or any affiliate of the
Fund Company from providing administrative, sub-accounting, trustee,
recordkeeping or similar or related services to the Funds.
23. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of _______________,/1/ without giving effect to such
state's principles of conflicts of law.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers as of the date first written above.
[NAME OF ORGANIZATION] [NAME OF FUND COMPANY]
By: __________________________ By: _______________________________
Name: ________________________ Name: _____________________________
Title: _______________________ Title: ____________________________
_________________________
/1/ [Maryland for purposes of Excelsior Funds, Inc. and Excelsior Tax-exempt
Funds, Inc. and Delaware with respect to Excelsior Institutional Trust.]
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SCHEDULE I
TO SHAREHOLDER SERVICING AGREEMENT
(Late Trading)
Fund
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*Indicates that Fund is a "no-load" or "no sales charge" Fund as defined in
Section 26 of the NASD's Rules of Fair Practice.
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SCHEDULE II
SHAREHOLDER SERVICING AGREEMENT
(Late Trading)
Pursuant to this Shareholder Servicing Agreement, Organization shall be
responsible for performing shareholder account administrative and servicing
functions, which shall include:
(1) assisting customers of the Fund Company ("Customer") in designating and
changing dividend options, account designations and addresses;
(2) providing necessary personnel and facilities to establish and maintain
certain shareholder accounts and records, as may reasonably be requested from
time to time by the Fund Company;
(3) assisting in processing purchases, exchange and redemption transactions;
(4) arranging for the wiring of funds;
(5) transmitting and receiving funds in connection with Customer orders to
purchase, exchange or redeem Shares;
(6) verifying and guaranteeing Customer signatures in connection with
redemption orders, transfers among and changes in Customer-designated accounts;
(7) providing periodic statements showing a Customer's account balances and, to
the extent practicable, integration of such information with information
concerning other client transactions otherwise effected with or through
Organization;
(8) furnishing on behalf of the Fund Company's distributor (either separately
or on an integrated basis with other reports sent to a Customer by Organization)
periodic statements and confirmations of all purchases, exchanges and
redemptions of Shares in a Customer's account required by applicable federal or
state law, all such confirmations and statements to conform to Rule 10b-10 under
the Securities Exchange Act of 1934 and other applicable federal or state law;
(9) transmitting proxy statements, annual reports, updating prospectuses and
other communications from the Fund Company to Customers;
(10) receiving, tabulating and transmitting to the Fund Company proxies executed
by Customers with respect to annual and special meetings of shareholders of the
Fund Company;
(11) providing reports (at least monthly, but more frequently if so requested by
the Fund Company's distributor) containing state-by-state listings of the
principal residences of the beneficial owners of the Shares; and
(12) providing or arranging for the provision of such other related services as
the Fund Company or a Customer may reasonably request.
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