AMENDED AND RESTATED
ADMINISTRATION AGREEMENT
This AGREEMENT made as of July 31, 1998 by and among EXCELSIOR
FUNDS, a Delaware business trust (the "Company"), CHASE GLOBAL FUNDS SERVICES
COMPANY, a Delaware corporation ("CGFSC"), FEDERATED ADMINISTRATIVE SERVICES
("FAS"), a Delaware trust, and U.S. TRUST COMPANY OF CONNECTICUT ("U.S. Trust"),
a Connecticut state bank and trust company (CGFSC, FAS and U.S. Trust are
collectively referred to as the "Administrators").
WITNESSETH:
WHEREAS, the Company is registered as an open-end, management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Company wishes to retain the Administrators to
provide, as co-administrators, certain administration services with respect to
one or more of the Company's investment portfolios (individually, a "Fund," and
collectively, the "Funds"), as described and set forth on one or more exhibits
to this Agreement, and the Administrators are willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Company hereby appoints the Administrators
to provide administration services to the Funds for the period and on the terms
set forth in this Agreement. The Administrators accept such appointment and
agree to furnish the services herein set forth in return for the compensation as
provided in Section 4 of this Agreement. In the event that the Company
establishes one or more investment portfolios other than the Funds with respect
to which it decides to retain the Administrators to act as co-administrators
hereunder, the Company shall notify the Administrators in writing. If the
Administrators are willing to render such services to a new investment
portfolio, they shall so notify the Company in writing whereupon such investment
portfolio 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 those relating to the compensation payable by the
Company) may be modified with respect to such investment portfolio in writing by
the Company and the Administrators at the time of the addition of such new
investment portfolio.
2. Delivery of Documents. The Company has furnished each of
the Administrators with copies, properly certified or authenticated, of each of
the following:
(a) Resolutions of the Company's Board of Trustees
authorizing the appointment of the Administrators to provide certain
administration services to the Company and approving this Agreement;
(b) The Company's Trust Instrument ("Charter");
(c) The Company's Bylaws ("Bylaws");
(d) The Company's Notification of Registration on
Form N-8A under the 1940 Act as filed with the Securities and Exchange
Commission ("SEC");
(e) The Company's most recent Post-Effective
Amendment to its Registration Statement on Form N-1A (File Nos. 33-71306,
811-8132) (the "Registration Statement") under the Securities Act of 1933 and
the 1940 Act, as filed with the SEC;
(f) The Company's Administrative Services Plan; and
(g) The Company's most recent Prospectuses and
Statements of Additional Information and all amendments and supplements thereto
(such Prospectuses and Statements of Additional Information and supplements
thereto, as presently in effect and as from time to time amended and
supplemented, herein called the "Prospectus").
The Company will timely furnish each of the
Administrators from time to time with copies, properly certified or
authenticated, of all amendments of or supplements to the foregoing, if any.
3. Services and Duties. Subject to the supervision and control
of the Company's Board of Trustees, and as delineated on one or more Exhibits to
the Agreement, the Administrators agree to assist in supervising various aspects
of each Fund's administrative operations, including the performance of the
following specific services for each Fund:
(a) Providing office facilities (which may be in the
offices of any of the Administrators or a corporate affiliate of any of them,
but shall be in such location as the Company shall reasonably approve);
(b) Furnishing statistical and research data,
clerical services, and stationery and office supplies;
(c) Keeping and maintaining all financial accounts
and records (other than those required to be maintained by the Company's
Custodian and Transfer Agent);
(d) Computing each Fund's net asset value, net income
and net capital gain (loss) in accordance with the Company's Prospectus and
resolutions of its Board of Trustees;
(e) Compiling data for and preparing for execution
and filing with the SEC required reports and notices to shareholders of record
and the SEC including, without limitation, Semi-Annual and Annual Reports to
Shareholders, Semi-Annual Reports on Form N-SAR and timely Rule 24f-2 Notices;
(f) Compiling data for, and preparing for execution
and filing, all reports or other documents required by Federal, state and other
applicable laws and regulations, including those required by applicable Federal
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and state tax laws (other than those required to be filed by the Company's
Custodian or Transfer Agent);
(g) Reviewing and providing advice with respect to
all sales literature (advertisements, brochures and shareholder communications)
for each of the Funds and any class or series thereof;
(h) Assisting in developing and monitoring compliance
procedures for each Fund and any class or series thereof, including, without
limitation, procedures to monitor compliance with applicable law and
regulations, each Fund's investment objectives, policies and restrictions, its
continued qualification as a regulated investment company under the Internal
Revenue Code of 1986, as amended, and other tax matters;
(i) Monitoring the Company's arrangements with
respect to services provided by certain organizations ("Service Organizations")
under its Administrative Services Plan, provided that each Administrator will
only be responsible for monitoring arrangements with Service Organizations with
whom the Administrator has established the servicing relationship on behalf of
the Company. With respect to such Service Organizations, the Administrators
shall specifically monitor and review the services rendered by Service
Organizations to their customers who are the beneficial owners of shares,
pursuant to agreements between the Company and such Service Organizations
("Servicing Agreements"), including, without limitation, reviewing the
qualifications of financial institutions wishing to be Service Organizations,
assisting in the execution and delivery of Servicing Agreements, reporting to
the Company's Board of Trustees with respect to the amounts paid or payable by
the Company from time to time under the Servicing Agreements and the nature of
the services provided by Service Organizations, and maintaining appropriate
records in connection with such duties;
(j) Determining, together with the Company's Board of
Trustees, the jurisdictions in which the Company's shares shall be registered or
qualified for sale and, in connection therewith, maintaining the registration or
qualification of shares for sale under the securities laws of any state. Payment
of share registration fees and any fees for qualifying or continuing the
qualification of any Fund as a dealer or broker, if applicable, shall be made by
that Fund;
(k) Assisting to the extent requested by the Company
and its outside counsel with the preparation of the Company's Registration
Statement on Form N-1A or any replacement therefor; and
(l) Assisting in the monitoring of regulatory and
legislative developments which may affect the Company and, in response to such
developments, counseling and assisting the Company in routine regulatory
examinations or investigations of the Company, and working with outside counsel
to the Company in connection with regulatory matters or litigation.
In performing their duties as co-administrators of the
Company, the Administrators (a) will act in accordance with the Company's
Charter, Bylaws, Prospectus and the instructions and directions of the Company's
Board of Trustees and will conform to, and comply with, the requirements of the
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1940 Act and all other applicable Federal or state laws and regulations, and (b)
will consult with outside legal counsel to the Company, as necessary or
appropriate.
The Administrators will preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act the records required to be maintained by Rule
31a-1 under said Act in connection with the services required to be performed
hereunder. The Administrators further agree that all such records which they
maintain for the Company are the property of the Company and further agree to
surrender promptly to the Company any of such records upon the Company's
request.
4. Fees; Expenses; Expense Reimbursement.
For the services rendered pursuant to this Agreement for the
Trust, the Administrators shall be entitled jointly to a fee at the annual rate
of .10% of each Fund's average daily net assets. The fee attributable to each
Fund shall be the several (and not joint or joint and several) obligation of
each Fund. Such fees are to be computed daily and paid monthly on the first
business day of the following month. Upon any termination of this Agreement
before the end of any month, the fee for such part of the month shall be
pro-rated according to the proportion which such period bears to the full
monthly period and shall be payable upon the date of termination of this
Agreement.
For purposes of determining fees payable to the
Administrators, the value of each Fund's net assets shall be computed as
required by its Prospectus, generally accepted accounting principles, and
resolutions of the Company's Board of Trustees.
The Administrators will from time to time employ or associate
with themselves such person or persons as they may believe to be fitted to
assist them in the performance of this Agreement. Such person or persons may be
officers and employees who are employed by both the Administrators and the
Company. The compensation of such person or persons for such employment shall be
paid by the Administrators and no obligation may be incurred on behalf of the
Company in such respect.
The Administrators will bear all expenses in connection with
the performance of their services under this Agreement except as otherwise
expressly provided herein. Other expenses to be incurred in the operation of the
Funds, including taxes, interest, brokerage fees and commissions, if any,
salaries and fees of officers and trustees who are not officers, directors,
shareholders or employees of the Administrators, or the Company's investment
adviser or distributor for the Funds, SEC fees and state Blue Sky qualification
fees, advisory and administration fees, charges of custodians, transfer and
dividend disbursing agents' fees, certain insurance premiums, outside auditing
and legal expenses, payments to Service Organizations, costs of maintenance of
corporate existence, typesetting and printing of prospectuses for regulatory
purposes and for distribution to current shareholders of the Funds, costs of
shareholders' reports and corporate meetings and any extraordinary expenses,
will be borne by the Company, provided, however, that the Company will not bear,
directly or indirectly, the cost of any activity which is primarily intended to
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result in the distribution of shares of the Funds, and further provided that the
Administrators may utilize one or more independent pricing services, approved
from time to time by the Board of Trustees of the Company, to obtain securities
prices in connection with determining the net asset value of each Fund and that
each Fund will reimburse the Administrators for its share of the cost of such
services based upon its actual use of the services.
If in any fiscal year any Fund's aggregate expenses (as
defined under the securities regulations of any state having jurisdiction over
the Fund) exceed the expense limitations of any such state, the Administrators
agree to reimburse such Fund for a portion of any such excess expenses in an
amount equal to the proportion that the fees otherwise payable to the
Administrators bears to the total amount of investment advisory and
administration fees otherwise payable by the Fund. The expense reimbursement
obligation of the Administrators is limited to the amount of their fees
hereunder for such fiscal year, provided, however, that notwithstanding the
foregoing, the Administrators shall reimburse such Fund for a portion of any
such excess expenses in an amount equal to the proportion that the fee otherwise
payable to the Administrators bears to the total amount of investment advisory
and administration fees otherwise payable by the Fund regardless of the amount
of fees paid to the Administrators during such fiscal year to the extent that
the securities regulations of any state having jurisdiction over the Funds so
require. Such expense reimbursement, if any, will be estimated, reconciled and
paid on a monthly basis. With respect to the amounts required to be reimbursed
under this Section 4 in any fiscal year, the parties to this Agreement agree
that U.S. Trust alone shall reimburse such amounts up to the amount of fees
received by CGFSC and U.S. Trust under this Agreement for such year. FAS shall
only be obligated to reimburse expenses to the extent that the amounts required
to be reimbursed under this Section 4 in any fiscal year exceed the amount of
fees received by CGFSC and U.S. Trust under this Agreement for such year and to
the extent that U.S. Trust makes reimbursements equaling the amount of all such
fees received by CGFSC and U.S. Trust, provided that the reimbursement
obligation of FAS shall be limited to the amount of fees received by it under
this Agreement for such year.
5. Proprietary and Confidential Information. The
Administrators agree on behalf of themselves and their employees to treat
confidentially and as proprietary information of the Company all records and
other information relative to the Funds and prior, present or potential
shareholders, and not to use such records and information for any purpose other
than performance of their responsibilities and duties hereunder, except after
prior notification to and approval in writing by the Company, which approval
shall not be unreasonably withheld and may not be withheld where the
Administrators may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Company.
6. Limitation of Liability. Each Administrator 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 resulting from willful misfeasance, bad
faith or gross negligence on its part in the performance of its duties or from
reckless disregard by it of its obligations and duties under this Agreement. In
no event shall an Administrator be liable for any indirect, incidental, special
or consequential losses or indirect, incidental, special or consequential
damages of any kind whatsoever (including, but not limited to lost profits),
even if such Administrator has been advised of the likelihood of such losses or
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damages and regardless of the form of action. Any person, even though also an
officer, partner, employee or agent of any of the Administrators, who may be or
become an officer, trustee, employee or agent of the Company shall be deemed
when rendering services to the Company or acting on any business of the Company
(other than services or business in connection with the Administrators' duties
hereunder) to be rendering such services to or acting solely for the Company and
not as an officer, partner, employee or agent or one under the control or
direction of the Administrators even though paid by any of them. The
Administrators agree that this Agreement shall not create any joint and/or
several liability among the Administrators with respect to services provided by
any particular Administrator as set forth herein.
7. Term. This Agreement shall become effective on July 31,
1998 and, unless sooner terminated as provided herein, shall continue until July
31, 1999, and thereafter shall continue automatically with respect to each Fund
for successive annual periods ending on July 31 of each year, provided such
continuance is specifically approved at least annually by the Company's Board of
Trustees. This Agreement is terminable with respect to each Fund, without
penalty, on not less than forty-five (45) days' notice by the Company's Board of
Trustees or by CGFSC, FAS or U.S. Trust. This Agreement will terminate
automatically in the event of its "assignment" (as defined in the 1940 Act). The
parties agree that an assignment includes the transfer of "control" of more than
25% of the outstanding voting securities of FAS to a company that is not a
subsidiary of Federated Investors, Inc.
8. Governing Law. This Agreement shall be governed by New York
law.
9. Notices. All notices required or permitted herein shall be
in writing and shall be deemed to be properly given when delivered personally or
by telecopier to the party entitled to receive the notice or when sent by
certified or registered mail, postage prepaid, or delivered to an
internationally recognized overnight courier service, in each case properly
addressed to the party entitled to receive such notice at the address or
telecopier number stated below or to such other address or telecopier number as
may hereafter be furnished in writing by notice similarly given by one party to
the other party hereto:
If to the Company:
Excelsior Funds
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telecopier Number: (000) 000-0000
With copies to:
W. Xxxxx XxXxxxxx, III, Esq.
Drinker Xxxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopier Number: (000) 000-0000
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If to CGFSC:
Chase Global Funds Services Company
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telecopier Number: (000) 000-0000
If to FAS:
Federated Administrative Services
Federated Investors Tower
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telecopier Number: (000) 000-0000
If to U.S. Trust:
U.S. Trust Company of Connecticut
000 Xxxx Xxxxx Xxxx
Xxxx Xxxxxxxx
Xxxxxxxx, XX 00000
Telecopier Number: (000) 000-0000
10. Miscellaneous. No provisions 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. If a change or discharge is sought against the Company,
the instrument must be signed by each Administrator. This Agreement may be
executed in one or more counterparts and all such counterparts will constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers designated below as of the date
indicated above.
EXCELSIOR FUNDS
/s/ Xxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President and Treasurer
CHASE GLOBAL FUNDS SERVICES COMPANY
/s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice Chairman
FEDERATED ADMINISTRATIVE SERVICES
/s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title:
U.S. TRUST COMPANY OF CONNECTICUT
/s/ W. Xxxxxxx Xxxxx
---------------------------
Name: W. Xxxxxxx Xxxxx
Title: President and CEO
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Exhibit A
to the
Amended and Restated Administration Agreement
EXCELSIOR FUNDS
Institutional Money Fund
In consideration of the mutual covenants set forth in the Amended and
Restated Administration Agreement dated as of July 31, 1998 among Excelsior
Funds (the "Company"), Chase Global Funds Services Company ("CGFSC"), Federated
Administrative Services ("FAS") and U.S. Trust Company of Connecticut ("U.S.
Trust"), the Company executes and delivers this Exhibit on behalf of the Funds,
and with respect to any class or series thereof, first set forth in this
Exhibit.
Pursuant to Section 3 of the Agreement, FAS agrees to provide
facilities, equipment, and personnel to carry out the following administrative
services to the Funds, with the understanding that CGFSC will provide all other
services and duties set forth in said Section 3 but not otherwise listed below:
(a) Performing a due diligence review of SEC required reports and
notices to shareholders of record and to the SEC including, without limitation,
Semi-Annual and Annual Reports to Shareholders, Semi-Annual Reports on Form
N-SAR, Proxy Statements and SEC share registration notices;
(b) Reviewing the Company's Registration Statement on Form N-1A or any
replacement therefor;
(c) Reviewing and filing with the National Association of Securities
Dealers, Inc. all sales literature (advertisements, brochures and shareholder
communications) for each of the Funds and any class or series thereof;
(d) Preparing distributor's reports to the Company's Board of Trustees;
(e) Performing internal audit examinations in accordance with a charter
to be adopted by FAS and the Company;
(f) Upon request, providing individuals reasonably acceptable to the
Company's Board of Trustees for nomination, appointment, or election as officers
of the Company, who will be responsible for the management of certain of the
Funds' affairs as determined by the Company;
(g) Consulting with the Funds and the Company's Board of Trustees, as
appropriate, on matters concerning the distribution of Funds;
(h) Monitoring the Company's arrangements with respect to services
provided by certain organizations ("Service Organizations") under its
Administrative Services Plan, provided that FAS will only be responsible for
monitoring arrangements with Service Organizations with whom FAS has established
the servicing relationship on behalf of the Company. With respect to such
Service Organizations, FAS shall specifically monitor and review the services
rendered by Service Organizations to their customers who are the beneficial
owners of shares, pursuant to agreements between the Company and such Service
Organizations ("Servicing Agreements"), including, without limitation, reviewing
the qualifications of financial institutions wishing to be Service
Organizations, assisting in the execution and delivery of Servicing Agreements,
reporting to the Company's Board of Trustees with respect to the amounts paid or
payable by the Company from time to time under the Servicing Agreements and the
nature of the services provided by Service Organizations, and maintaining
appropriate records in connection with such duties; and
(i) Consulting with CGFSC and the Company regarding the jurisdictions
in which the Company's shares shall be registered or qualified for sale and, in
connection therewith, reviewing and monitoring the actions of CGFSC in
maintaining the registration or qualification of shares for sale under the
securities laws of any state. Payment of share registration fees and any fees
for qualifying or continuing the qualification of any Fund as a dealer or
broker, if applicable, shall be made by that Fund.
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Witness the due execution hereof this 31st day of July, 1998.
EXCELSIOR FUNDS
/s/Xxxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President and Treasurer
FEDERATED ADMINISTRATIVE SERVICES
/s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title:
CHASE GLOBAL FUNDS SERVICES COMPANY
/s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice Chairman
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Exhibit B
to the
Amended and Restated Administration Agreement
EXCELSIOR FUNDS
Institutional Money Fund
In consideration of the mutual covenants set forth in the Amended and
Restated Administration Agreement dated as of July 31, 1998 among Excelsior
Funds (the "Company"), Chase Global Funds Services Company ("CGFSC"), Federated
Administrative Services ("FAS") and U.S. Trust Company of Connecticut ("U.S.
Trust"), the Company executes and delivers this Exhibit on behalf of the Funds,
and with respect to any class or series thereof, first set forth in this
Exhibit.
Pursuant to Section 3 of the Agreement, U.S. Trust agrees to provide
facilities, equipment, and personnel to carry out the following administrative
services to the Funds:
(a) Providing guidance and assistance in the preparation of SEC
required reports and notices to shareholders of record and to the SEC including,
without limitation, Semi-Annual and Annual Reports to Shareholders, Semi-Annual
Reports on Form N-SAR, Proxy Statements and SEC share registration notices;
(b) Reviewing the Company's Registration Statement on Form N-1A or any
replacement therefor;
(c) Consulting with the Funds and the Company's Board of Trustees, as
appropriate, on matters concerning the administration and operation of the
Funds;
(d) Monitoring the Company's arrangements with respect to services
provided by certain organizations ("Service Organizations") under its
Administrative Services Plan, provided that U.S. Trust will only be responsible
for monitoring arrangements with Service Organizations with whom U.S. Trust has
established the servicing relationship on behalf of the Company. With respect to
such Service Organizations, U.S. Trust shall specifically monitor and review the
services rendered by Service Organizations to their customers who are the
beneficial owners of shares, pursuant to agreements between the Company and such
Service Organizations ("Servicing Agreements"), including, without limitation,
reviewing the qualifications of financial institutions wishing to be Service
Organizations, assisting in the execution and delivery of Servicing Agreements,
reporting to the Company's Board of Trustees with respect to the amounts paid or
payable by the Company from time to time under the Servicing Agreements and the
nature of the services provided by Service Organizations, and maintaining
appropriate records in connection with such duties.
Witness the due execution hereof this 31st day of July, 1998.
EXCELSIOR FUNDS
/s/ Xxxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President and Treasurer
U.S. TRUST COMPANY OF CONNECTICUT
/s/ W. Xxxxxxx Xxxxx
------------------------------
Name: W. Xxxxxxx Xxxxx
Title: President and CEO
