EXHIBIT (13)(e)
AMENDED AND RESTATED MUTUAL FUNDS
TRANSFER AGENCY AGREEMENT
AGREEMENT made as of July 31, 1998 by and between Excelsior Funds,
Inc. (the "Company") a Maryland corporation, and United States Trust Company of
New York ("U.S. Trust"), a New York state-chartered bank and trust company.
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:
(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;
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(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
(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
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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 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 Money, Government Money,
Equity, Managed Income, Income and 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 Agreement between the Distributor and the
Company dated as of August 1, 1995 (the "Distribution Agreement");
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(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 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
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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 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").
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The Company will furnish U.S. Trust 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. 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 date and price of all transactions
including individual purchase and redemptions and appropriate
supporting documents; and (iv) any dividend
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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 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
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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 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
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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 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 reports to the Company on the progress of
such tabulation, and
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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
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
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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 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);
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(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 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
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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 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.
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(e) U.S. Trust will bear all of its own expenses in connection with
the performance of the services under this 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 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
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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 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
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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 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:
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(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 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
(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.
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(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 forty-five (45) 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 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:
Excelsior Funds, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Assistant Treasurer
Fax: (000) 000-0000
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With a copy to:
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
Attn: Xxxxxxx X. Xxxxx, Xx., Esq.
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.
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
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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 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
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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.
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.
EXCELSIOR FUNDS, INC.
/s/ F. S. Wonham
----------------------------------------------
Name: F. S. Wonham
Title: President and Treasurer
UNITED STATES TRUST COMPANY
OF NEW YORK
/s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
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