Exhibit (h)(2)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
EXCELSIOR FUNDS TRUST
AND
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
1. Terms of Appointment and Duties ................................................... 1
2. Third Party Administrators for Defined Contribution Plans ......................... 3
3. Fees and Expenses ................................................................. 4
4. Representations and Warranties of the Transfer Agent .............................. 5
5. Representations and Warranties of the Fund ........................................ 6
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial Code ..... 6
7. Data Access and Proprietary Information of the Transfer Agent ..................... 7
8. Indemnification ................................................................... 9
9. Standard of Care .................................................................. 10
10. Year 2000 ......................................................................... 11
11. Confidential Fund and Transfer Agent Information .................................. 11
12. Covenants of the Fund and the Transfer Agent ...................................... 12
13. Termination of Agreement .......................................................... 13
14. Assignment and Third Party Beneficiaries .......................................... 15
15. Subcontractors .................................................................... 15
16. Miscellaneous ..................................................................... 15
17. Additional Funds .................................................................. 17
18. Limitations of Liability of the Trustees and Shareholders ......................... 18
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 24/th/ day of September, 2001, by and between EXCELSIOR
FUNDS TRUST, a Delaware business trust, having its principal office and place of
business at Xxxxxxx Xxxxxx Xxxx, Xxxx, Xxxxxxxxxxxx (the "Fund"), and STATE
STREET BANK AND TRUST COMPANY, a Massachusetts trust company having its
principal office and place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Transfer Agent").
WHEREAS, the Fund is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS, the Fund intends to initially offer shares in seven (7) series, such
series shall be named in the attached Schedule A which may be amended by the
parties from time to time (each such series, together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with Section 17, being herein referred to as a "Portfolio", and
collectively as the "Portfolios"); and
WHEREAS, the Fund on behalf of the Portfolios desires to appoint the Transfer
Agent as its transfer agent, dividend disbursing agent, custodian of certain
retirement plans and agent in connection with certain other activities, and the
Transfer Agent desires to accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Terms of Appointment and Duties
1.1 Transfer Agency Services. Subject to the terms and conditions set
forth in this Agreement, the Fund, on behalf of the Portfolios, hereby employs
and appoints the Transfer Agent to act as, and the Transfer Agent agrees to act
as its transfer agent for the Fund's authorized and issued shares of its
beneficial interest ("Shares"), dividend disbursing agent, custodian of certain
retirement plans and agent in connection with any accumulation, open-account or
similar plan provided to the shareholders of each of the respective Portfolios
of the Fund ("Shareholders") and set out in the currently effective prospectus
and statement of additional information ("prospectus") of the Fund on behalf of
the applicable Portfolio, including, without limitation, any periodic investment
plan or periodic withdrawal program. In accordance with procedures established
from time to time by agreement between the Fund on behalf of each of the
Portfolios, as applicable and the Transfer Agent, the Transfer Agent agrees that
it will perform the following services:
(a) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof to the Custodian
of the Fund authorized pursuant to the Declaration of Trust of the Fund (the
"Custodian");
(b) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(c) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to the Custodian;
(d) In respect to the transactions in items (a), (b) and (c) above,
the Transfer Agent shall execute transactions directly with broker-dealers and
other financial institutions authorized by the Fund who shall thereby be deemed
to be acting on behalf of the Fund;
(e) At the appropriate time as and when it receives monies paid to it
by the Custodian with respect to any redemption, pay over or cause to be paid
over in the appropriate manner such monies as instructed by the redeeming
Shareholders;
(f) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and distributions
declared by the Fund on behalf of the applicable Portfolio;
(h) Issue replacement certificates for those certificates alleged to
have been lost, stolen or destroyed upon receipt by the Transfer Agent of
indemnification satisfactory to the Transfer Agent and protecting the Transfer
Agent and the Fund, and the Transfer Agent at its option, may issue replacement
certificates in place of mutilated stock certificates upon presentation thereof
and without such indemnity;
(i) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing;
(j) Record the issuance of Shares of the Fund and maintain pursuant
to SEC Rule 17Ad-10(e) a record of the total number of Shares of the Fund which
are authorized, based upon data provided to it by the Fund, and issued and
outstanding. The Transfer Agent shall also provide the Fund on a regular basis
with the total number of Shares which are authorized and issued and outstanding
and shall have no obligation, when recording the issuance of Shares, to monitor
the issuance of such Shares or to take cognizance of any laws relating to the
issue or sale of such Shares, which functions shall be the sole responsibility
of the Fund; and
(k) In the event any check or other order for the transfer of money
is returned unpaid, take such steps as it may deem appropriate or the Fund may
instruct to protect the Fund and the Transfer Agent from financial loss.
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph, the Transfer
Agent shall perform the following services:
(a) Other Customary Services. Perform the customary services of a
transfer agent, dividend disbursing agent, custodian of certain retirement plans
and, as relevant, agent in connection with accumulation, open-account or similar
plan (including, without limitation, any periodic investment plan or periodic
withdrawal program), including, but not limited to: maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing Shareholder proxies,
Shareholder reports and prospectuses to current Shareholders, withholding taxes
on U.S.
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resident and non-resident alien accounts and maintaining records with respect to
such withholding, preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required with respect to dividends and distributions by
federal authorities for all Shareholders, preparing and mailing confirmation
forms and statements of account to Shareholders for all purchases and
redemptions of Shares and other confirmable transactions in Shareholder
accounts, responding to Shareholder telephone calls and Shareholder
correspondence, preparing and mailing activity statements for Shareholders, and
providing Shareholder account information.
(b) Control Book (also known as "Super Sheet"). Maintain a daily
record and produce a daily report for the Fund of all transactions and receipts
and disbursements of money and securities and deliver a copy of such report for
the Fund for each business day to the Fund no later than 9:00 AM Eastern Time,
or such earlier time as the Fund may reasonably require, on the next business
day;
(c) "Blue Sky" Reporting. The Fund shall (i) identify to the Transfer
Agent in writing those transactions and assets to be treated as exempt from blue
sky reporting for each State and (ii) verify the establishment of transactions
for each State on the system prior to activation and thereafter monitor the
daily activity for each State. The responsibility of the Transfer Agent for the
Fund's blue sky State registration status is solely limited to the initial
establishment of transactions subject to blue sky compliance by the Fund and
providing a system which will enable the Fund to monitor the total number of
Shares sold in each State;
(d) National Securities Clearing Corporation (the "NSCC"). (i) accept
and effectuate the registration and maintenance of accounts through Networking
and the purchase, redemption, transfer and exchange of shares in such accounts
through Fund/SERV (Networking and Fund/SERV being programs operated by the NSCC
on behalf of NSCC's participants, including the Fund) or such other electronic
clearing systems as have been agreed to by the Fund and the Transfer Agent
("OCS"), in accordance with, instructions transmitted to and received by the
Transfer Agent by transmission from NSCC or OCS on behalf of broker-dealers and
banks which have been established by, or in accordance with the instructions of
authorized persons, as hereinafter defined on the dealer file maintained by the
Transfer Agent; (ii) issue instructions to Fund's banks for the settlement of
transactions between the Fund and NSCC or OCS (acting on behalf of its
broker-dealer and bank participants); (iii) provide account and transaction
information from the affected Fund's records on DST Systems, Inc. computer
system TA2000 ("TA2000 System") in accordance with NSCC's Networking and
Fund/SERV or OCS rules for those broker-dealers; and (iv) maintain Shareholder
accounts on TA2000 System through Networking;
(e) New Procedures. New procedures as to who shall provide certain of
these services in Section 1 may be established in writing from time to time by
agreement between the Fund and the Transfer Agent. Pursuant to such agreement
the Transfer Agent may at times perform only a portion of these services and the
Fund or its agent may perform these services on the Fund's behalf.
2. Third Party Administrators for Defined Contribution Plans
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2.1 The Fund may decide to make available to certain of its customers, a
qualified plan program (the "Program") pursuant to which the customers
("Employers") may adopt certain plans of deferred compensation ("Plan or Plans")
for the benefit of the individual Plan participant (the "Plan Participant"),
such Plan(s) being qualified under Section 401(a) of the Internal Revenue Code
of 1986, as amended ("Code") and administered by third party administrators
which may be plan administrators as defined in the Employee Retirement Income
Security Act of 1974, as amended (the "TPA(s)").
2.2 In accordance with the procedures established in the initial Schedule
2.1 entitled "Third Party Administrator Procedures", as may be amended by the
Transfer Agent and the Fund from time to time ("Schedule 2.1"), the Transfer
Agent shall:
(a) Treat Shareholder accounts established by the Plans in the name
of the Trustees, Plans or TPAs as the case may be as omnibus accounts;
(b) Maintain omnibus accounts on its records in the name of the TPA
or its designee as the Trustee for the benefit of the Plan; and
(c) Perform all services under Section 1 as transfer agent of the
Funds and not as a record-keeper for the Plans.
2.3 Transactions identified under Section 2 of this Agreement shall be
deemed exception services ("Exception Services") when such transactions:
(a) Require the Transfer Agent to use methods and procedures other
than those usually employed by the Transfer Agent to perform services under
Section 1 of this Agreement;
(b) Involve the provision of information to the Transfer Agent after
the commencement of the nightly processing cycle of the TA2000 System; or
(c) Require more manual intervention by the Transfer Agent, either in
the entry of data or in the modification or amendment of reports generated by
the TA2000 System than is usually required by non-retirement plan and
pre-nightly transactions.
3. Fees and Expenses
3.1 Fee Schedule. For the performance by the Transfer Agent pursuant to
this Agreement, the Fund agrees to pay the Transfer Agent an annual maintenance
fee for each Shareholder account as set forth in the attached fee schedule
("Schedule 3.1"). Such fees and out-of-pocket expenses and advances identified
under Section 3.2 below may be changed from time to time subject to mutual
written agreement between the Fund and the Transfer Agent.
3.2 Out-of-Pocket Expenses. In addition to the fee paid under Section 3.1
above, the Fund agrees to reimburse the Transfer Agent for reasonable
out-of-pocket expenses, including, but not limited to: confirmation production,
postage, forms, telephone, microfilm, microfiche, mailing and tabulating
proxies, records storage, or advances incurred by the Transfer Agent for the
items set out in Schedule 3.1 attached hereto. In addition, any other reasonable
expenses
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incurred by the Transfer Agent at the request or with the consent of the Fund,
will be reimbursed by the Fund.
3.3 Postage. Postage for mailing of dividends, proxies, Fund reports and
other mailings to all shareholder accounts shall be advanced to the Transfer
Agent by the Fund at least seven (7) days prior to the mailing date of such
materials.
3.4 Invoices. The Fund agrees to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of the respective billing notice,
except for any fees or expenses that are subject to good faith dispute. In the
event of such a dispute, the Fund may only withhold that portion of the fee or
expense subject to the good faith dispute. The Fund shall notify the Transfer
Agent in writing within twenty-one (21) calendar days following the receipt of
each billing notice if the Fund is disputing any amounts in good faith. If the
Fund does not provide such notice of dispute within the required time, the
billing notice will be deemed accepted by the Fund. The Fund shall settle such
disputed amounts within five (5) days of the day on which the parties agree on
the amount to be paid by payment of the agreed amount. If no agreement is
reached, then such disputed amounts shall be settled as may be permitted by law
or legal process.
3.5 Late Payments. If any undisputed amount in an invoice of the Transfer
Agent (for fees or reimbursable expenses) is not paid when due, the Fund shall
pay the Transfer Agent interest thereon (from the due date to the date of
payment) at a per annum rate equal to one percent (1.0%) plus the Prime Rate
(that is, the base rate on corporate loans posted by large domestic banks)
published by The Wall Street Journal (or, in the event such rate is not so
published, a reasonably equivalent published rate selected by the Fund) on the
first day of publication during the month when such amount was due.
Notwithstanding any other provision hereof, such interest rate shall be no
greater than permitted under applicable provisions of Massachusetts law.
4. Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to the Fund that:
4.1 It is a trust company duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
4.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.3 It is empowered under applicable laws and by its Charter and By-Laws
to enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
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4.6 It is registered as a transfer agent under the Securities Exchange Act
of 1934, as amended.
5. Representations and Warranties of the Fund
The Fund represents and warrants to the Transfer Agent that:
5.1 It is a business trust duly organized and existing and in good
standing under the laws of the State of Delaware.
5.2 It is empowered under applicable laws and by its Declaration of Trust
and By-Laws to enter into and perform this Agreement.
5.3 All trust proceedings required by said Declaration of Trust and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
5.4 It is an open-end management investment company registered under the
Investment Company Act of 1940, as amended.
5.5 A registration statement under the Securities Act of 1933, as amended
is currently effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made, with respect
to all Shares of the Fund being offered for sale.
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial
Code
6.1 Obligation of Sender. The Transfer Agent is authorized to promptly
debit the appropriate Fund account(s) upon the receipt of a payment order in
compliance with the selected security procedure (the "Security Procedure")
chosen for funds transfer and in the amount of money that the Transfer Agent has
been instructed to transfer. The Transfer Agent shall execute payment orders in
compliance with the Security Procedure and with the Fund instructions on the
execution date provided that such payment order is received by the customary
deadline for processing such a request, unless the payment order specifies a
later time. All payment orders and communications received after the customary
deadline will be deemed to have been received the next business day.
6.2 Security Procedure. The Fund acknowledges that the Security Procedure
it has designated on the Fund Selection Form was selected by the Fund from
security procedures offered by the Transfer Agent. The Fund shall restrict
access to confidential information relating to the Security Procedure to
authorized persons as communicated to the Transfer Agent in writing. The Fund
must notify the Transfer Agent immediately if it has reason to believe
unauthorized persons may have obtained access to such information or of any
change in the Fund's authorized personnel. The Transfer Agent shall verify the
authenticity of all Fund instructions according to the Security Procedure.
6.3 Account Numbers. The Transfer Agent shall process all payment orders
on the basis of the account number contained in the payment order. In the event
of a discrepancy between any name indicated on the payment order and the account
number, the account number shall take precedence and govern.
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6.4 Rejection. The Transfer Agent reserves the right to decline to process
or delay the processing of a payment order which (a) is in excess of the
collected balance in the account to be charged at the time of the Transfer
Agent's receipt of such payment order; (b) if initiating such payment order
would cause the Transfer Agent, in the Transfer Agent's sole judgement, to
exceed any volume, aggregate dollar, network, time, credit or similar limits
which are applicable to the Transfer Agent; or (c) if the Transfer Agent, in
good faith, is unable to satisfy itself that the transaction has been properly
authorized.
6.5 Cancellation Amendment. The Transfer Agent shall use reasonable best
efforts to act on all authorized requests to cancel or amend payment orders
received in compliance with the Security Procedure provided that such requests
are received in a timely manner affording the Transfer Agent reasonable
opportunity to act. However, the Transfer Agent assumes no liability if the
request for amendment or cancellation cannot be satisfied.
6.6 Errors. The Transfer Agent shall assume no responsibility for failure
to detect any erroneous payment order provided that the Transfer Agent complies
with the payment order instructions as received and the Transfer Agent complies
with the Security Procedure. The Security Procedure is established for the
purpose of authenticating payment orders only and not for the detection of
errors in payment orders.
6.7 Interest. The Transfer Agent shall assume no responsibility for lost
interest with respect to the refundable amount of any unauthorized payment
order, unless the Transfer Agent is notified of the unauthorized payment order
within thirty (30) days of notification by the Transfer Agent of the acceptance
of such payment order.
6.8 ACH Credit Entries/Provisional Payments. When the Fund initiates or
receives Automated Clearing House credit and debit entries pursuant to these
guidelines and the rules of the National Automated Clearing House Association
and the New England Clearing House Association, the Transfer Agent will act as
an Originating Depository Financial Institution and/or Receiving Depository
Financial Institution, as the case may be, with respect to such entries. Credits
given by the Transfer Agent with respect to an ACH credit entry are provisional
until the Transfer Agent receives final settlement for such entry from the
Federal Reserve Bank. If the Transfer Agent does not receive such final
settlement, the Fund agrees that the Transfer Agent shall receive a refund of
the amount credited to the Fund in connection with such entry, and the party
making payment to the Fund via such entry shall not be deemed to have paid the
amount of the entry.
6.9 Confirmation. Confirmation of Transfer Agent's execution of payment
orders shall ordinarily be provided within twenty-four (24) hours notice of
which may be delivered through the Transfer Agent's proprietary information
systems, or by facsimile or callback. Fund must report any objections to the
execution of an order within thirty (30) days.
7. Data Access and Proprietary Information of the Transfer Agent
7.1 The Fund acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to the Fund by the Transfer Agent as part of the Fund's
ability to access certain Fund-related data
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("Customer Data") maintained by the Transfer Agent on databases under the
control and ownership of the Transfer Agent or other third party ("Data Access
Services") constitute copyrighted, trade secret, or other proprietary
information (collectively, "Proprietary Information") of substantial value to
the Transfer Agent or other third party. In no event shall the Transfer Agent's
Proprietary Information be deemed Customer Data.
7.2 The Fund agrees to treat all Proprietary Information as proprietary to
the Transfer Agent and further agrees that it shall not divulge any Proprietary
Information to any person or organization except as may be provided hereunder.
Without limiting the foregoing, the Fund agrees for itself and its employees and
agents to:
(a) Use such programs and databases (i) solely on the Fund's or U.S.
Trust Company's or its affiliate's computers, or (ii) solely from equipment at
the location agreed to between the Fund, or U.S. Trust Company and the Transfer
Agent and (iii) solely in accordance with the Transfer Agent's applicable user
documentation;
(b) Refrain from copying or duplicating in any way (other than in the
normal course of performing processing on the Fund's computer(s)), the
Proprietary Information;
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently obtained, to inform
in a timely manner of such fact and dispose of such information in accordance
with the Transfer Agent's instructions;
(d) Refrain from causing or allowing information transmitted from the
Transfer Agent's computer to the Fund's or U.S. Trust Company's or its
affiliate's terminal to be retransmitted to any other computer terminal or other
device except as expressly permitted by the Transfer Agent (such permission not
to be unreasonably withheld);
(e) Allow the Fund to have access only to those authorized
transactions as agreed to between the Fund and the Transfer Agent; and
(f) Honor all reasonable written requests made by the Transfer Agent
to protect at the Transfer Agent's expense the rights of the Transfer Agent in
Proprietary Information at common law, under federal copyright law and under
other federal or state law.
7.3 Proprietary Information shall not include all or any portion of any of
the foregoing items that: (i) are or become publicly available without breach of
this Agreement; (ii) are released for general disclosure by a written release by
the Transfer Agent; (iii) are already in the possession of the receiving party
at the time of receipt without obligation of confidentiality or breach of this
Agreement; (iv) are subsequently disclosed to a party hereto on a
non-confidential basis by a third party that is not bound by an agreement of non
disclosure or confidentiality with another party hereto or its affiliates, which
rightfully acquired such information; or (v) are independently developed by a
party hereto.
7.4 The Fund acknowledges that its obligation to protect the Transfer
Agent's Proprietary Information is essential to the business interest of the
Transfer Agent and that the disclosure of such Proprietary Information in breach
of this Agreement would cause the Transfer
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Agent immediate, substantial and irreparable harm, the value of which would be
extremely difficult to determine. Accordingly, the parties agree that, in
addition to any other remedies that may be available in law, equity, or
otherwise for the disclosure or use of the Proprietary Information in breach of
this Agreement, the Transfer Agent shall be entitled to seek and obtain a
temporary restraining order, injunctive relief, or other equitable relief
against the continuance of such breach.
7.5 If the Fund notifies the Transfer Agent that any of the Data Access
Services do not operate in material compliance with the most recently issued
user documentation for such services, the Transfer Agent shall take reasonable
best efforts to correct such failure in a timely manner. Organizations from
which the Transfer Agent may obtain certain data included in the Data Access
Services are solely responsible for the contents of such data and the Fund
agrees to make no claim against the Transfer Agent arising out of the contents
of such third-party data, including, but not limited to, the accuracy thereof
and the Transfer Agent shall make such reasonable best efforts to assist the
Fund in resolving any claim or other discrepancy the Fund may have with such
third party organizations. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND
SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS IS,
AS AVAILABLE BASIS; PROVIDED, HOWEVER, THAT THE TRANSFER AGENT SHALL CONTINUE TO
BE RESPONSIBLE FOR ANY DELAY IN OR OTHER FAILURE OF PERFORMANCE THAT ARISES AS A
RESULT OF A MATTER REASONABLY WITHIN THE TRANSFER AGENT'S CONTROL. THE TRANSFER
AGENT EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
7.6 If the transactions available to the Fund include the ability to
originate electronic instructions to the Transfer Agent in order to (i) effect
the transfer or movement of cash or Shares or (ii) transmit Shareholder
information or other information, then in such event the Transfer Agent shall be
entitled to rely on the validity and authenticity of such instruction without
undertaking any further inquiry as long as such instruction is undertaken in
conformity with reasonable security procedures established by the Transfer Agent
from time to time.
7.7 Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Section 7. The obligations of this Section
shall survive any earlier termination of this Agreement.
8. Indemnification
8.1 The Transfer Agent shall not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent harmless from and against, any and all
losses, damages, costs, charges, counsel fees, payments, expenses and liability
arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or subcontractors
required to be taken pursuant to this Agreement (including reasonable fees and
costs associated with the defense of any law suit in which the Transfer Agent or
affiliate is a named party), provided that such actions are taken in good faith
and without negligence or willful misconduct;
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(b) The Fund's lack of good faith, negligence or willful misconduct;
(c) Provided that the Transfer Agent has acted in good faith and
without negligence or willful misconduct the reliance upon, and any subsequent
use of or action taken or omitted, by the Transfer Agent, or its agents or
subcontractors on: (i) any information, records, documents, data, stock
certificates or services, which are received by the Transfer Agent or its agents
or subcontractors by machine readable input, facsimile, CRT data entry,
electronic instructions or other similar means authorized by the Fund, and which
have been prepared, maintained or performed by the Fund or any other person or
firm on behalf of the Fund including, but not limited to, any broker-dealer, TPA
or previous transfer agent; (ii) any instructions or requests of the Fund or any
of its officers reasonably believed by Transfer Agent to be genuine and
authentic; (iii) any instructions or opinions of legal counsel with respect to
any matter arising in connection with the services to be performed by the
Transfer Agent under this Agreement which are provided to the Transfer Agent
after consultation with such legal counsel; or (iv) any paper or document,
reasonably believed to be genuine, authentic, or signed by the proper person or
persons;
(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be registered or in
violation of any stop order or other determination or ruling by any federal or
any state agency with respect to the offer or sale of such Shares;
(e) The negotiation of all checks received by the Transfer Agent in
connection with the performance of its services under this Agreement, including
the deposit of such checks into the Fund's demand deposit account maintained by
the Transfer Agent; or
(f) Upon the Fund's request entering into any agreements required by
the NSCC or OCS for the transmission of Fund or Shareholder data through the
NSCC or OCS, although the Transfer Agent will be liable for the Transfer Agent's
negligence, willful misconduct and lack of good faith in performing its
obligations under such agreements.
8.2 In order that the indemnification provisions contained in this Section
8 shall apply, upon the assertion of a claim for which the Fund may be required
to indemnify the Transfer Agent, the Transfer Agent shall promptly notify the
Fund of such assertion, and shall keep the Fund advised with respect to all
developments concerning such claim. The Fund shall have the option to
participate with the Transfer Agent in the defense of such claim or to defend
against said claim in its own name or in the name of the Transfer Agent. The
Transfer Agent shall in no case confess any claim or make any compromise in any
case in which the Fund may be required to indemnify the Transfer Agent except
with the Fund's prior written consent.
9. Standard of Care
The Transfer Agent shall at all times act in good faith and agrees to use
its best efforts within reasonable limits to ensure the accuracy of all
services performed under this Agreement, but assumes no responsibility and
shall not be liable for loss or damage due to errors, including encoding
and payment processing errors, unless said errors are caused by its
negligence, bad faith, or willful misconduct or that of its employees or
agents. The
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parties agree that any encoding or payment processing errors shall be
governed by this standard of care and Section 4-209 of the Uniform
Commercial Code is superseded by Section 9 of this Agreement. This standard
of care also shall apply to Exception Services, as defined in Section 2.3
herein, but such application shall take into consideration the manual
processing involved in, and time sensitive nature of, Exception Services.
10. Year 2000
The Transfer Agent will take reasonable steps to ensure that its products
(and those of its third-party suppliers) reflect the available technology
to offer products that are Year 2000 ready, including, but not limited to,
century recognition of dates, calculations that correctly compute same
century and multi century formulas and date values, and interface values
that reflect the date issues arising between now and the next one-hundred
years, and if any changes are required, the Transfer Agent will make the
changes to its products at a price to be agreed upon by the parties and in
a commercially reasonable time frame and will require third-party suppliers
to do likewise.
11. Confidential Fund and Transfer Agent Information
11.1 The Transfer Agent and the Fund agree that they will not, at any time
during the term of this Agreement or after its termination, reveal, divulge, or
make known to any person, firm, corporation or other business organization, any
shareholders' or customers' lists, trade secrets, cost figures and projections,
profit figures and projections, or any personal information of the Funds'
shareholders or other secret or confidential information whatsoever, whether of
the Transfer Agent or of the Fund, used or gained by the Transfer Agent or the
Fund during performance under this Agreement ("Confidential Information"). For
purposes of this Agreement, Confidential Information for either party shall also
include:
(a) Any data or information that is competitively sensitive material,
and not generally known to the public, including, but not limited to,
information about product plans, marketing strategies, finance, operations,
customer relationships, customer profiles, Shareholder personal information,
sales estimates, business plans, and internal performance results relating to
the past, present or future business activities of the Fund or the Transfer
Agent, their respective affiliates and customers, shareholders, clients and
suppliers of any of them;
(b) Any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and secret in
the sense that its confidentiality affords the Fund or the Transfer Agent a
competitive advantage over its competitors;
(c) All confidential or proprietary concepts, documentation, reports,
data specifications, computer software, source code, object code, flow charts,
databases, inventions, know-how and trade secrets, whether or not patentable or
copyrightable.
11.2 Confidential Information shall not include all or any portion of any
of the foregoing items that: (i) are or become publicly available without breach
of this Agreement; (ii)
-11-
are released for general disclosure by a written release by the Transfer Agent
or the Fund, as the case may be; (iii) are already in the possession of the
receiving party at the time of receipt without obligation of confidentiality or
breach of this Agreement; (iv) are subsequently disclosed to a party hereto on a
non-confidential basis by a third party that is not bound by an agreement of non
disclosure or confidentiality with another party hereto or its affiliates, which
rightfully acquired such information; or (v) are independently developed by a
party hereto.
11.3 The Fund and the Transfer Agent further covenant and agree to retain
all such Confidential Information in trust for the sole benefit of the Transfer
Agent or the Fund and their successors and assigns.
11.4 In the event of breach of the foregoing by either party, the remedies
provided by Section 7.4 shall be available to the party whose confidential
information is disclosed in additional to any other remedies permitted by law.
The above prohibition of disclosure shall not apply to the extent that the
Transfer Agent or the Fund, as the case may be, must disclose such data to its
sub-contractor or Fund agent for purposes of providing services under this
Agreement.
11.5 In the event that any requests or demands are made for the inspection
of the Shareholder records of the Fund, other than request for records of
Shareholders pursuant to standard subpoenas from state or federal government
authorities (i.e., divorce and criminal actions), the Transfer Agent will use
reasonable best efforts, to the extent legally permitted, to notify the Fund and
to secure instructions from an authorized officer of the Fund as to such
inspection. The Transfer Agent expressly reserves the right, however, to exhibit
the Shareholder records to any person whenever it is advised by counsel that it
may be held liable for the failure to exhibit the Shareholder records to such
person or if required by law or court order.
12. Covenants of the Fund and the Transfer Agent
12.1 The Fund shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Trustees of
the Fund authorizing the appointment of the Transfer Agent and the execution and
delivery of this Agreement; and
(b) A copy of the Declaration of Trust and By-Laws of the Fund and
all amendments thereto.
12.2 The Transfer Agent hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Fund for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
12.3 The Transfer Agent shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable, as
required by applicable laws, rules and regulations, as required by applicable
laws, rules and regulations. To the extent required by Section 31 of the
Investment Company Act of 1940, as amended, and the Rules thereunder, the
Transfer Agent agrees that all such records prepared or maintained by the
Transfer Agent relating to the services to be performed by the Transfer Agent
hereunder are the
-12-
property of the Fund and will be preserved, maintained and made available in
accordance with such Section and Rules, and will be surrendered promptly to the
Fund on and in accordance with its request.
13. Termination of Agreement
13.1 Subject to termination as hereinafter provided in Section 13.3, this
Agreement shall remain in force and effect for a period of one (1) year from the
date hereof (the "Initial Term" of this Agreement). This Agreement shall
automatically extend for additional, successive one (1) year terms upon the
expiration of any term hereof, unless terminated as of the end of any term by
either party on not less than four (4) month's written notice to the other
party. Each additional one (1) year period shall be an additional term of this
Agreement.
13.2 In the event that this Agreement is terminated, the Transfer Agent
agrees that, in order to provide for uninterrupted service to the Fund, the
Transfer Agent, at the Fund's request, shall offer reasonable assistance to the
Fund in converting the records of the Fund from the Transfer Agent's systems to
whatever services or systems are selected by the Fund (the "Deconversion"). As
used herein "reasonable assistance" and "transitional assistance" shall not
include requiring the Transfer Agent (i) to assist any new service or system
provider (the "New Agent") to modify, to alter, to enhance, or to improve the
New Agent's system, or to provide any new functionality to the New Agent's
system, (ii) to disclose any Proprietary Information of the Transfer Agent, or
(iii) to develop Deconversion software, to modify any Transfer Agent software,
or to otherwise alter the format of the data as maintained on any Transfer
Agent's systems. Prior to the commencement of the Deconversion, the Transfer
Agent shall provide the Fund with a formal written estimate of the cost of such
Deconversion for prior approval by the Fund. The estimate will be based on the
requirements of the Fund and the New Agent and will include a detailed breakdown
of the anticipated (i) technical and non-technical support hours for each phase
of the Deconversion (including design specification, programming, testing and
implementation); (ii) reasonable out-of-pocket expenses and (iii) mutually
agreed upon fees for any post-Deconversion support services selected by the
Fund.
13.3 (a) The Fund, in addition to any other rights and remedies, shall
have the right to terminate this Agreement upon the occurrence of (i) the
bankruptcy of the Transfer Agent or the appointment of a receiver therefor if
such proceedings are not dismissed within 21 days of being brought, or (ii) a
material breach of this Agreement by the Transfer Agent. With respect to (i),
the termination shall be effective at any time specified in a written notice
from the Fund to the Transfer Agent. With respect to (ii), the Fund shall
provide the Transfer Agent with written notice identifying such failure or
breach and stating its intention to terminate the Agreement in ninety (90) days
from the date of such notice if such failure or breach has not been cured by the
Transfer Agent within thirty (30) days after receipt of such written notice from
the Fund.
(b) The Transfer Agent, in addition to any other rights and remedies,
shall have the right to terminate this Agreement upon the occurrence at any time
of (i) the bankruptcy of the Fund or the appointment of a receiver therefor if
such proceedings are not dismissed within 21 days of being brought, or (ii) the
material failure by the Fund to perform its duties and obligations under this
Agreement or a material breach of this Agreement by the Fund. With respect to
(i), the termination shall be effective at any time specified in a written
notice from the
-13-
Transfer Agent to the Fund. With respect to (ii), the Transfer Agent must
provide the Fund with written notice identifying such failure or breach and
stating its intention to terminate the Agreement in ninety (90) days from the
date of such notice if such failure or breach has not been cured by the Fund
within thirty (30) days after receipt of such written notice from the Transfer
Agent.
13.4 Termination of this Agreement by the Fund or by the Transfer Agent by
reason of the material failure or material breach of such other party shall not
constitute a waiver of (i) any other rights of any party under this Agreement or
of (ii) the rights of the Transfer Agent to recover payment for services
performed prior to such termination or to receive termination fees under Section
13.5(a)(i) or to be reimbursed for out-of-pocket expenditures as per this
Agreement.
13.5 In the event of termination of this Agreement, the Fund will promptly
pay the Transfer Agent all amounts due the Transfer Agent hereunder. In
addition, if the Fund terminates this Agreement less than three years from the
date of this Agreement, the Fund shall pay to the Transfer Agent the cost
incurred by the Transfer Agent for the Fund's Conversion and implementation,
which the parties have agreed shall be deemed to be $180,000 for purposes of
this provision (the "Conversion Cost"). The Conversion Cost shall be reduced by
$60,000 at the end of each of the first three years from the date of this
Agreement and shall be subject to a pro rata reduction for a partial year if the
Agreement is terminated before the end of any year in the first three years.
13.6 In the event, the effective date of any Deconversion as a result of
termination hereof is to occur during the period from December 15/th/ through
March 30/th/, the Fund and the Transfer Agent agree to cooperate with one
another in order to minimize the potentially adverse impact on year-end
processing and reporting.
13.7 Within thirty (30) days after completion of a Deconversion, the Fund
will give notice to the Transfer Agent containing reasonable instructions
regarding the disposition of tapes, data, files and other property belonging to
the Fund and then in the Transfer Agent's possession and payment for all
Transfer Agent's reasonable costs to comply with such notice. If the Fund fails
to give that notice within thirty (30) days after termination of this Agreement,
then the Transfer Agent shall ship such materials to the Fund. The reasonable
costs of any such disposition, the continued storage or the shipping of such
tapes, data files and other properties shall be billed to, and within thirty
(30) days of receipt of such invoice paid by, the Fund.
14. Assignment and Third Party Beneficiaries
14.1 Except as provided in Section 15.1 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party without the
written consent of the other party. Any attempt to do so in violation of this
Section shall be void. Unless specifically stated to the contrary in any written
consent to an assignment, no assignment will release or discharge the assignor
from any duty or responsibility under this Agreement.
14.2 Except as explicitly stated elsewhere in this Agreement, nothing under
this Agreement shall be construed to give any rights or benefits in this
Agreement to anyone other
14
than the Transfer Agent and the Fund, and the duties and responsibilities
undertaken pursuant to this Agreement shall be for the sole and exclusive
benefit of the Transfer Agent and the Fund. This Agreement shall inure to the
benefit of and be binding upon the parties and their respective permitted
successors and assigns.
14.3 This Agreement does not constitute an agreement for a partnership or
joint venture between the Transfer Agent and the Fund. Other than as provided in
Section 15.1, neither party shall make any commitments with third parties that
are binding on the other party without the other party's prior written consent.
15. Subcontractors
15.1 The Transfer Agent may, without further consent on the part of the
Fund, subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("Boston Financial") which is duly
registered as a transfer agent pursuant to Section 17A(c)(2) of the Securities
Exchange Act of 1934, as amended, (ii) a Boston Financial subsidiary duly
registered as a transfer agent or (iii) a Boston Financial affiliate duly
registered as a transfer agent; provided, however, that the Transfer Agent shall
be fully responsible to the Fund for the acts and omissions of Boston Financial
or its subsidiary or affiliate as it is for its own acts and omissions.
15.2 Nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the Transfer Agent liable for the actions or omissions
to act of unaffiliated third parties such as by way of example and not
limitation, Airborne Services, Federal Express, United Parcel Service, the U.S.
Mails, the NSCC and telecommunication companies, provided, if the Transfer Agent
selected such company, the Transfer Agent shall have exercised due care in
selecting the same.
16. Miscellaneous
16.1 Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties and, if material, authorized or approved by a
resolution of the Board of Trustees of the Fund.
16.2 Massachusetts Law to Apply. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of The
Commonwealth of Massachusetts without regard to its conflict of laws provisions.
16.3 Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to perform or
otherwise from such causes.
In the event of a disaster rendering the Transfer Agent's systems or
facilities inoperable, the Transfer Agent will use all reasonable
efforts to continue to provide services to the Fund in accordance with
the Transfer Agent's then current
15
Business Contingency Plan, which includes such general back-up
facilities as the Transfer Agent reasonably determines to be
appropriate.
16.4 Consequential Damages. Neither party to this Agreement shall be
liable to the other party for special, indirect or consequential damages under
any provision of this Agreement or for any special, indirect or consequential
damages arising out of any act or failure to act hereunder.
16.5 Survival. All provisions regarding indemnification, warranty,
liability, and limits thereon, and confidentiality and/or protections of
proprietary rights and trade secrets shall survive the termination of this
Agreement.
16.6 Severability. If any provision or provisions of this Agreement shall
be held invalid, unlawful, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired.
16.7 Priorities Clause. In the event of any conflict, discrepancy or
ambiguity between the terms and conditions contained in this Agreement and any
Schedules or attachments hereto, the terms and conditions contained in this
Agreement shall take precedence.
16.8 Waiver. No waiver by either party or any breach or default of any of
the covenants or conditions herein contained and performed by the other party
shall be construed as a waiver of any succeeding breach of the same or of any
other covenant or condition.
16.9 Merger of Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject matter hereof whether oral or written.
16.10 Counterparts. This Agreement may be executed by the parties hereto on
any number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
16.11 Reproduction of Documents. This Agreement and all schedules,
exhibits, attachments and amendments hereto may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties hereto each agree that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence and
whether or not such reproduction was made by a party in the regular course of
business, and that any enlargement, facsimile or further reproduction shall
likewise be admissible in evidence.
16
16.12 Notices. All notices and other communications as required or
permitted hereunder shall be in writing and sent by first class mail, postage
prepaid, addressed as follows or to such other address or addresses of which the
respective party shall have notified the other.
(a) If to State Street Bank and Trust Company, to:
State Street Bank and Trust Company
c/o Boston Financial Data Services, Inc.
0 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b) If to the Fund, to:
Excelsior Funds Trust
c/o SEI Investments Mutual Funds Services
Xxxxxxx Xxxxxx Xxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
(c) With copies to:
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
00/xx/ xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: W. Xxxxx XxXxxxxx, Esq.
Facsimile: (000) 000-0000
And
Xxxxxxx Xxxxxx & Co.
000 Xxxxxxxxxx Xxxxxx
SF 000 XXX-00-000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxx, Esq.
Facsimile: (000) 000-0000
17. Additional Funds
In the event that the Fund establishes one or more series of Shares, in
addition to those listed on the attached Schedule A, with respect to
which it desires to have the Transfer
17
Agent render services as transfer agent under the terms hereof, it
shall so notify the Transfer Agent in writing, and if the Transfer
Agent agrees in writing to provide such services, such series of Shares
shall become a Portfolio hereunder.
18. Limitations of Liability of the Trustees and Shareholders
The names "Excelsior Funds Trust" and "Trustees of Excelsior Funds
Trust" refer respectively to the Trust created and the Trustees, as
trustees but not individually or personally, acting from time to time
under a Certificate of Trust dated April 27, 1994 as amended July 10,
2001 and as may be further amended from time to time which is hereby
referred to and a copy of which is on file at the office of the State
Secretary of the State of Delaware and the principal office of the
Trust. The obligations of "Excelsior Funds Trust" entered into in the
name or on behalf thereof by any of the Trustees, representatives or
agents are made not individually, but in such capacities, and are not
binding upon any of the Trustees, Shareholders, or representatives of
the Trust personally, but bind only the Trust Property, and all persons
dealing with any class of Shares of the Trust must look solely to the
Trust Property belonging to such class for the enforcement of any
claims against the Trust.
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
EXCELSIOR FUNDS TRUST
BY: /s/ Xxxxx Xxxxxxx
---------------------------
Chief Financial Officer
ATTEST:
/s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------------
Vice-President
STATE STREET BANK AND TRUST
COMPANY
BY: /s/ Xxxxx Hooly
---------------------------
Executive Vice President
ATTEST:
/s/ Xxxx Xxxxxxxx-Xxxxx
-----------------------
SCHEDULE A
Optimum Growth Fund
Mid Cap Value Fund
Equity Fund
International Equity Fund
Total Return Bond Fund
Income Fund
High Yield Fund
EXCELSIOR FUNDS TRUST STATE STREET BANK AND TRUST
COMPANY
BY: /s/ Xxxxx Xxxxxxx BY: /s/ Xxxxx Hooly
----------------------- ---------------
Chief Financial Officer
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
Dated 9/24/01
1. On each day on which both the New York Stock Exchange and the Fund are open
for business (a "Business Day"), the TPA(s) shall receive, on behalf of and as
agent of the Fund, Instructions (as hereinafter defined) from the Plan.
Instructions shall mean as to each Fund (i) orders by the Plan for the purchases
of Shares, and (ii) requests by the Plan for the redemption of Shares; in each
case based on the Plan's receipt of purchase orders and redemption requests by
Participants in proper form by the time required by the term of the Plan, but
not later than the time of day at which the net asset value of a Portfolio is
calculated, as described from time to time in that Portfolio's prospectus. Each
Business Day on which the TPA receives Instructions shall be a "Trade Date."
2. The TPA(s) shall communicate the TPA(s)'s acceptance of such Instructions, to
the applicable Plan.
3. On the next succeeding Business Day following the Trade Date on which it
accepted Instructions for the purchase and redemption of Shares, (TD+1), the
TPA(s) shall notify the Transfer Agent of the net amount of such purchases or
redemptions, as the case may be, for each of the Plans. In the case of net
purchases by any Plan, the TPA(s) shall instruct the Trustees of such Plan to
transmit the aggregate purchase price for Shares by wire transfer to the
Transfer Agent on (TD+1). In the case of net redemptions by any Plan, the TPA(s)
shall instruct the Fund's custodian to transmit the aggregate redemption
proceeds for Shares by wire transfer to the Trustees of such Plan on (TD+1). The
times at which such notification and transmission shall occur on (TD+1) shall be
as mutually agreed upon by the Fund, the TPA(s), and the Transfer Agent.
4. The TPA(s) shall maintain separate records for each Plan, which record shall
reflect Shares purchased and redeemed, including the date and price for all
transactions, and Share balances. The TPA(s) shall maintain on behalf of each of
the Plans a single master account with the Transfer Agent and such account shall
be in the name of that Plan, the TPA(s), or the nominee of either thereof as the
record owner of Shares owned by such Plan.
5. The TPA(s) shall maintain records of all proceeds of redemptions of Shares
and all other distributions not reinvested in Shares.
6. The TPA(s) shall prepare, and transmit to each of the Plans, periodic account
statements showing the total number of Shares owned by that Plan as of the
statement closing date, purchases and redemptions of Shares by the Plan during
the period covered by the statement, and the dividends and other distributions
paid to the Plan on Shares during the statement period (whether paid in cash or
reinvested in Shares).
2
7. The TPA(s) shall, at the request and expense of each Fund, transmit to the
Plans prospectuses, proxy materials, reports, and other information provided by
each Fund for delivery to its shareholders.
8. The TPA(s) shall, at the request of the Fund, prepare and transmit to the
Fund or any agent designated by it such periodic reports covering Shares of each
Plan as the Fund shall reasonably conclude are necessary to enable the Fund to
comply with state Blue Sky requirements.
9. The TPA(s) shall transmit to the Plans confirmation of purchase orders and
redemption requests placed by the Plans; and
10. The TPA(s) shall, with respect to Shares, maintain account balance
information for the Plan(s) and daily and monthly purchase summaries expressed
in Shares and dollar amounts.
11. Plan sponsors may request, or the law may require, that prospectuses, proxy
materials, periodic reports and other materials relating to the Fund be
furnished to Participants in which event the Transfer Agent or the Fund shall
mail or cause to be mailed such materials to Participants. With respect to any
such mailing, the TPA(s) shall, at the request of the Transfer Agent or the
Fund, provide at the TPA(s)'s expense a complete and accurate set of mailing
labels with the name and address of each Participant having an interest through
the Plans in Shares.
EXCELSIOR FUNDS TRUST STATE STREET BANK AND TRUST
COMPANY
BY:/s/ Xxxxx Xxxxxxx BY: /s/ Xxxxx Hooly
----------------- -------------------
Chief Financial Officer
3
SCHEDULE 3.1
FEES
Effective September 24th, 2001 through September 24th, 2002
General: Fees are billable on a monthly basis at the rate of 1/12 of the annual
fee. A charge is made for an account in the month that an account opens or
closes.
Annual Account Service Fees*
Account Type
Network Accounts $ 12.50/account
Direct Accounts $ 17.50/account
Closed Accounts $ 2.40/account
Complex Base Fee (includes 50 Funds/CUSIPS) $600,000.00
Additional Fund/CUSIP** $ 10,000.00/CUSIP
Activity Based Fees*
New Account Set-up $ 5.00/each
Manual Transactions $ 2.00/each
Telephone Calls $ 2.50/minute
Correspondence $ 5.00/each
Implementation Fees
Data Conversion $ 3.00/account converted***
System Enhancements
Training
--------------------------------------------------------------------------------
*Unless the parties shall otherwise agree in writing before the end of a term,
fees shall be subject to a cost of living adjustment after the first year based
on the local consumer price index for urban wage earners and clerical workers
(Boston-Brockton-Nashua, MA-NH-ME-CT; Base Period: 1982-84=100), as published by
the United States Department of Labor, Bureau of Labor Statistics.
**Each class is considered a CUSIP and will be billed accordingly.
***The Transfer Agent agrees to waive the fee, subject to the provisions of
Section 13.5 of the Agreement.
Out-of-Pocket Expenses Billed as incurred
Out-of-Pocket expenses include but are not limited to: confirmation statements,
investor statements, postage, forms, audio response, telephone, records
retention, customized programming / enhancements, federal wire, transcripts,
microfilm, microfiche, checkwriting setup, checkwriting (per draft), ACH and
expenses incurred at the specific direction of the Fund.
SCHEDULE 3.1
FEES
Effective September 24th, 2001 through September 24th, 2002
Fee Schedule Category Descriptions
The fee schedule categorizes the fees by the types of services to be provided to
Shareholders. A description of each category has been provided below.
Account Service Fees
The services included in the Account Service Fee include:
.. Distribution Center
. Receipt and sort of incoming mail
. Creation of electronic images for all paper received
. Automated distribution of work based on assigned priority
. Preparation of outbound mail
. Issuance of redemption and replacement checks
.. Transaction Processing
. New Account Establishment
. Purchases
. Redemptions
. Exchanges
. Transfers
. Systematic withdrawal plans
. Automatic investment plans
.. Retirement Plan Processing
. Individual Retirement Account ("XXX") Processing
. Traditional XXX
. Xxxx XXX
. SIMPLE XXX
. Xxxxxxxxx Education Savings Account (Formerly, Educational XXX)
. Contributions
. Current Year
. Prior Year
. Distributions
. Death
. Disability
. Normal
. Premature
. Transfer of Assets
. Correspondence
. Tracking of Asset Transfers
-2-
SCHEDULE 3.1
FEES
Effective September 24th, 2001 through September 24th, 2002
.. Control
. Input of daily prices and dividend rates
. Processing of dividend and capital gain distributions
. Reconciliation of daily bank accounts
. Blue Sky Control/Reconciliation
. Cash and Share Reconciliation
.. Marketing Distribution Services / Marketing Support
. Institutional Trading Desk
. NSCC System Support
. Fund Serv
. Networking
.. Year-End
. Account Valuation Statements
. Average Cost Accounting
. IRS Reporting
. 1099
. 1042
. 5498
.. Implementation Fees
. Data Conversion
. System Enhancements
. Training
Activity Based Fees
There is no charge for transactions automatically posted to shareholder
accounts. Examples of these include systematic purchases and withdrawals,
dividends, and transactions transmitted to us from an external source.
There is a fee for all transactions manually entered to the system. The
following is a brief description of the activity that would occur within each
category.
New Account Set-Ups: The input of information contained on New Account
Applications received from shareholders.
Telephone Calls: The answering of calls received from shareholders to obtain
general information about the fund and/or how to effect a transaction, or to
obtain information with regard to a specific shareholder account. Also calls
made to obtain clarification of instructions or additional information prior to
processing a transaction.
Manual Transactions: All transactions both financial and non-financial initiated
by Boston Financial will result in a manual transaction fee.
-3-
SCHEDULE 3.1
FEES
Effective September 24th, 2001 through September 24th, 2002
(continued)
Correspondence: Any correspondence (letter) initiated by Boston Financial will
result in a correspondence fee.
EXCELSIOR FUNDS TRUST STATE STREET BANK AND TRUST
COMPANY
BY: /s/ Xxxxx Xxxxxxx BY: /s/ Xxxxx Hooly
------------------ ---------------
Chief Financial Officer
-4-
SCHEDULE 3.1
FEES
Effective September 24th, 2001 through September 24th, 2002
(continued)
-5-
