UST049A
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT, dated as of January 1, 1994, by and between Excelsior
Funds (the "Trust"), a Delaware business trust having its principal place of
business at 0 Xx. Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and United States
Trust of New York (the "Financial Institution"), a bank and trust company
chartered under the laws of the state of New York, as a shareholder servicing
agent hereunder (the "Agent");
W I T N E S S E T H:
WHEREAS, certain transactions in Shares of Beneficial Interest (par
value $0.00001 per share) ("Shares"), which may be divided into separate series
(each, a "Fund"), of the Trust may be made by investors who are customers of,
and using the services of, a Shareholder Servicing Agent (as defined in the
then-current Prospectus or Offering Memorandum, as applicable, of the respective
series of the Trust), which has entered into a shareholder servicing agreement
with the Trust; and
WHEREAS, the Financial Institution wishes to make it possible for its
customers (the "Customers") to purchase Shares and wishes to act as the
Customers' agent in performing certain administrative functions in connection
with purchases and redemptions of Shares from time to time upon the order and
for the account of Customers and to provide related services to its Customers in
connection with their investments in the Trust; and
WHEREAS, it is in the interest of the Trust to make the services of the
Agent available to Customers who are or may become shareholders of the Trust;
NOW, THEREFORE, the Trust and the Financial Institution hereby agree as
follows:
1. APPOINTMENT. The Financial Institution, as Agent, hereby agrees to
perform certain services for Customers as hereinafter set forth.
2. SERVICE TO BE PERFORMED.
2.1. TYPE OF SERVICE. The Agent shall be responsible for performing
shareholder account administrative and servicing functions, which shall include
without limitation: (a) answering Customer inquiries regarding account status
and history, the manner in which purchases and redemptions of the Shares may be
effected, and certain other matters pertaining to the Trust; (b) assisting
Customers in designating and changing dividend options, account designations and
addresses; (c) providing necessary personnel and facilities to establish and
maintain certain shareholder accounts and records, as may reasonably be
requested from time to time by the Trust; (d) assisting in processing purchase,
exchange, and redemption transactions; (e) arranging for the wiring of funds;
(f) transmitting and receiving funds in connection with Customer orders to
purchase or redeem Shares; (g) verifying and guaranteeing Customer signatures in
connection with redemption orders, transfers among and changes in
Customer-designated accounts; (h) providing periodic statements showing a
Customer's account balances and, to the extent practicable, integration of such
information with information concerning other client transactions otherwise
effected with or through the Financial Institution; (i) furnishing on behalf of
the Trust's distributor (either separately or on an integrated basis with other
reports sent to a Customer by the Agent) all daily, monthly or annual statements
and confirmations of all purchases and redemptions of Shares in a Customer's
account required by applicable federal or state law, all such confirmations and
statements to conform to Rule 10b-10 under the Securities Exchange Act of 1934
and other applicable federal or state law; (j) transmitting proxy statements,
annual and semi-annual reports, updating Prospectuses or Offering Memoranda, as
applicable, and supplements thereto (or updating statements of additional
information or supplements thereto if requested by a Customer) and other
communications from the Trust to Customers; (k) receiving, tabulating and
transmitting to the Trust proxies executed by Customers with respect to annual
and special meetings of shareholders of the Trust; (l) providing reports (at
least monthly but more frequently if reasonably so requested by the Trust's
distributor) containing state-by-state listings of the principal residences of
the beneficial owners of the Shares; and (m) providing such other related
services as the Trust or a Customer may reasonably request. The Agent shall
provide all personnel and facilities to perform the functions described in this
paragraph with respect to its Customers and shall bear all of its own expenses
in connection therewith.
2.2. STANDARD OF SERVICES. All services to be rendered by the Agent
hereunder shall be performed in a professional, competent and timely manner. The
details of the operating standards and procedures to be followed by the Agent in
performance of the services described above shall be determined from time to
time by agreement between the Agent and the Trust. The Trust acknowledges that
the Agent's ability to perform on a timely basis certain of its obligations
under this Agreement depends upon the Trust's timely delivery of certain
materials and/or information to the Agent. The Trust agrees to use its best
efforts to provide such materials to the Agent in a timely manner.
3. FEES.
3.1. FEES FROM THE TRUST. In consideration for the services described
in Section 2 hereof and the incurring of expenses in connection therewith, the
Agent shall receive a fee on an annual basis equal to a percentage, to be
determined periodically by the paries, of the average daily net assets of each
Fund, for that Fund's then-current fiscal year, represented by Shares owned
during the period for which payment is being made by Customers for whom the
Agent is the holder or agent of record or with whom it maintains a servicing
relationship. For purposes of determining the fees payable to the Agent
hereunder, the value of each Fund's net assets shall be computed in the manner
specified in the Fund's then-current Prospectus or Offering Memorandum, as
applicable, for computation of the net asset value of the Fund's Shares. The
above fees constitute all fees to be paid to the Agent by the Trust with respect
to the transactions contemplated hereby.
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3.2. FEES FROM CUSTOMERS. It is agreed that the Financial Institution
may impose certain conditions on Customers, in addition to or different from
those imposed by the Trust, such as requiring a minimum initial investment or
charging Customers direct fees for the same or similar services as are provided
hereunder by the Financial Institution as Agent (which fees may either relate
specifically to the Financial Institution's services with respect to the Trust
or generally cover services not limited to those with respect to the Trust);
PROVIDED, HOWEVER, that the Financial Institution may not charge customers any
direct fee which would constitute a "sales load" within the meaning of Section
2(a)(35) of the Investment Company Act of 1940, as amended (the "1940 Act"). The
Financial Institution shall xxxx Customers directly for such fees. In the event
the Financial Institution charges Customers such fees, it shall notify the Trust
in advance and make appropriate prior written disclosure (such disclosure to be
in accordance with all applicable laws) to Customers of any such fees charged to
the Customer. To the extent required by applicable rules and regulations of the
Securities and Exchange Commission, the Trust shall make written disclosure of
the fees paid or to be paid to the Agent pursuant to Section 3.1 of this
Agreement. It is understood, however, that in no event shall the Financial
Institution have recourse or access as Agent or otherwise to the account of any
shareholder of the Trust except to the extent expressly authorized by law or by
such shareholder, or to any assets of the Trust, for payment of any direct fees
referred to in this Section 3.2.
4. INFORMATION PERTAINING TO THE SHARES. The Agent and its officers,
employees and agents are not authorized to make any representations concerning
the Trust or the Shares to Customers or prospective Customers, excepting only
accurate communication of any information provided by or on behalf of any
administrator of the Trust or any distributor of the Shares or any factual
information contained in the then-current Prospectus or Offering Memorandum, as
applicable, Statement of Additional Information or Registration Statement. In
furnishing such information regarding the Trust or the Shares, the Agent shall
act as agent for the Customer only and shall have no authority to act as agent
for the Trust. Advance copies or proofs of all materials (other than a
Prospectus or Offering Memorandum, as applicable, Statement of Additional
Information, Registration Statement or other writing furnished to the Agent by
the Trust) which are generally circulated or disseminated by the Agent to
Customers or prospective Customers which identify or describe the Trust shall be
provided to the Trust at least 10 days prior to such circulation or
dissemination (unless the Trust consents in writing to a shorter period), and
such materials shall not be circulated or disseminated or further circulated or
disseminated at any time after the Trust shall have given written notice to the
Agent of any objection thereto.
Nothing in this Section 4 shall be construed to make the Trust liable
for the use (as opposed to the accuracy) of any information about the Trust
which is disseminated by the Agent.
5. USE OF THE AGENT'S NAME. The Trust shall not use the name of the
Agent, the Financial Institution or any of its affiliates or subsidiaries in any
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Prospectus or Offering Memorandum, as applicable, sales literature or other
material relating to the Trust in a manner not approved by the Agent prior
thereto in writing; PROVIDED, HOWEVER, that the approval of the Agent shall not
be required for any use of its name which merely refers in accurate and factual
terms to its appointment, the services provided and the fees paid hereunder and
is required by the Securities and Exchange Commission or any state securities
authority or any other appropriate regulatory, governmental or judicial
authority; PROVIDED, FURTHER, that in no event shall such approval be
unreasonably withheld or delayed.
6. USE OF THE TRUST'S NAME. The Agent shall not use the name of the
Trust on any checks, bank drafts, bank statements or forms for other than
internal use in a manner not approved by the Trust prior thereto in writing;
PROVIDED, HOWEVER, that the approval of the Trust shall not be required for the
use of the Trust's name in connection with communications permitted by Section 4
hereof or (subject to Section 4, to the extent the same may be applicable) for
any use of the Trust's name which merely refers in accurate and factual terms to
the Trust in connection with the Agent's role hereunder or which is required by
the Securities and Exchange Commission or any state securities authority or any
other appropriate regulatory, governmental or judicial authority; PROVIDED,
FURTHER, that in no event shall such approval be unreasonably withheld or
delayed.
7. SECURITY. The Agent represents and warrants that to the best of its
knowledge, the various procedures and systems which it has implemented
(including provision for twenty-four hours a day restricted access) with regard
to safeguarding from loss or damage attributable to fire, theft or any other
cause the Trust's records and other data and the Agent's records, data,
equipment, facilities and other property used in the performance of its
obligations hereunder are adequate and that it will make such changes therein
from time to time as in its judgment are required for the secure performance of
its obligations hereunder. The parties shall review such systems and procedures
on a periodic basis, and the Trust shall from time to time specify the types of
records and other data of the Trust to be safeguarded in accordance with this
Section 7.
8. COMPLIANCE WITH LAWS. Each of the Agent and the Trust shall comply
with all applicable federal and state laws and regulations, including securities
laws in respect of this Agreement and the activities contemplated hereby. Each
of the Agent and the Trust represents and warrants to the other that the
performance of all its obligations hereunder will comply with all applicable
laws and regulations, the provisions of its charter documents and by-laws and
all material contractual obligations binding upon it. Each of the Agent and the
Trust furthermore undertakes that it will promptly, after it becomes so aware,
inform the other of any change in applicable laws or regulations (or
interpretations thereof) or in its charter or by-laws or material contracts
which would prevent or impair full performance of any of its obligations
hereunder.
9. REPORTS. To the extent requested by the Trust from time to time, the
Agent agrees that it will provide the Treasurer of the Trust with a written
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report of the amounts expended by the Agent pursuant to this Agreement and the
purposes for which such expenditures were made. Such written reports shall be in
a form reasonably satisfactory to the Trust and shall supply all information
reasonably necessary for the Trust and the Agent to discharge their respective
responsibilities under applicable laws and regulations.
10. RECORD KEEPING. While it is acknowledged and agreed that the
provisions of the 1940 Act, the Securities Exchange Act of 1934 and the
regulations thereunder that are referenced in this Section 10 do not apply to
the Agent, the Agent agrees, as agent for the Trust, to maintain certain records
and accounts as if such provisions apply to it, as herein provided.
10.1. SECTION 31(A). The Agent shall, on behalf of the Trust, maintain
records in a form reasonably acceptable to the Trust and in compliance with
applicable laws and the rules and regulations of the Securities and Exchange
Commission, including but not limited to the record-keeping requirements of
Section 31(a) of the 1940 Act and the rules thereunder. Such records shall be
deemed to be the property of the Trust and will be made available, at the
Trust's request, for inspection and use by the Trust, representatives of the
Trust and governmental authorities.
10.2. RULES 17A-3 AND 17A-4. The Agent shall maintain accurate and
complete records with respect to services performed by the Agent in connection
with the purchase and redemption of Shares. Such records shall be maintained in
a form reasonably acceptable to the Trust and in compliance with the
requirements of Rules 17a-3 and 17a-4 under the Securities Exchange Act of 1934,
as amended, pursuant to which any dealer of the Shares must maintain certain
records. All such records maintained by the Agent shall be the property of such
dealer and will be made available for inspection and use by the Trust or such
dealer upon the request of either. The Agent shall file with the Securities and
Exchange Commission and other appropriate governmental authorities, and furnish
to the Trust and any such dealer copies of, all reports and undertakings as may
be reasonably requested by the Trust or such dealer in order to comply with the
said rules. If so requested by any such dealer, the Agent shall confirm to such
dealer its obligations under this Section 10.2 by a writing reasonably
satisfactory to such dealer.
10.3. IDENTIFICATION, ETC. OF RECORDS. The Trust shall from time to
time instruct the Agent in writing as to, and the Trust and the Agent shall
periodically review, the records to be maintained and the procedures to be
followed by the Agent in complying with the foregoing Sections 10.1 and 10.2 and
Section 8 to the extent it relates to record-keeping required under federal
securities laws and regulations. Notwithstanding the provisions of Section 8,
the Agent shall be entitled to rely on such instructions.
10.4. TRANSFER OF CUSTOMER DATA. In the event this Agreement is
terminated or a successor to the Agent is appointed, the Agent shall, at the
expense of the Trust, transfer to such designee as the Trust may direct a
certified list of the shareholders of the Trust serviced by the Agent (with
name,
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address and tax identification or Social Security number), a complete record of
the account of each such shareholder with respect to shares of the Trust and the
status thereof, and all other relevant books, records, correspondence, and other
data established or maintained by the Agent under this Agreement. In the event
this Agreement is terminated, the Agent will use reasonable efforts to cooperate
in the orderly transfer of such duties and responsibilities, including
assistance in the establishment of books, records and other data by the
successor.
10.5. SURVIVAL OF RECORD-KEEPING OBLIGATIONS. The Agent shall retain
any records deemed the property of the Trust pursuant to Section 10 for a period
of six years after the end of the fiscal year in which the transaction to which
such records relate occurred and shall, at the written request of the Trust
before the expiration of such period with respect to any records, deliver such
records to the Trust or its designated agent.
10.6. OBLIGATIONS PURSUANT TO AGREEMENT ONLY. Nothing in this Section
10 shall be construed to mean that the Agent would, by virtue of its role
hereunder, be required under applicable law to maintain the records required to
be maintained by it under this Section 10.
10.7. AGENT'S RIGHTS TO COPY RECORDS. Anything in this Section 10 to
the contrary notwithstanding, except to the extent otherwise prohibited by law,
the Agent shall have the right to copy, maintain and use any records maintained
by the Agent pursuant to this Section 10, except as otherwise prohibited by
Sections 4 and 6 hereof.
11. FORCE MAJEURE. The Agent shall not be liable or responsible for
delays or errors by reason of circumstances beyond its reasonable control,
including, but not limited to, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdown, flood or
catastrophe, Acts of God, insurrection, war, riots or failure of communication
or power supply.
12. INDEMNIFICATION.
12.1. INDEMNIFICATION OF THE AGENT. Without limiting the rights of the
Agent Indemnified Parties (as hereinafter defined) under applicable law, the
Trust will indemnify and hold harmless the Agent, any person that directly or
indirectly controls the Agent (within the meaning of the Securities Act of 1933
and the Securities Exchange Act of 1934, each as amended) and the Agent's and
their respective directors, officers and employees (collectively, the "Agent
Indemnified Parties") from all losses, claims, damages, liabilities or expenses,
joint or several, to which they or any of them become subject insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
arise out of or are based upon (a) any untrue statement or alleged untrue
statement contained in the then-current Prospectus or Offering Memorandum, as
applicable, Statement of Additional Information or Registration Statement, or
any omission or alleged omission therefrom, or (b) any claim, demand, action or
suit, both (x) arising in connection with actions or inactions by the Trust or
any of
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its agents or contractors or the performance of the Agent's obligations
hereunder and (y) not resulting from (i) the bad faith or gross negligence of
the Agent, its officers, employees or agents, or (ii) any breach of applicable
law by the Agent, its officers, employees or agents, or (iii) any action of the
Agent, its officers, employees or agents which exceeds the legal authority of
the Agent or its authority hereunder, or (iv) any material error or omission of
the Agent, its officers, employees or agents with respect to the purchase,
redemption and transfer of Customers' Shares or the Agent's verification or
guarantee of any Customer signature. Notwithstanding anything herein to the
contrary, the Trust will indemnify and hold the Agent harmless from any and all
losses, claims, damages, liabilities or expenses (including reasonable counsel
fees and expenses) resulting from any claim as a result of its acting in
accordance with any written instructions reasonably believed by the Agent to
have been executed by any person duly authorized by the Trust, or as a result of
acting in reliance upon any instrument or stock certificate reasonably believed
by the Agent to have been genuine and signed, countersigned or executed by a
person duly authorized by the Trust, excepting only the gross negligence or bad
faith of the Agent.
In any case in which the Trust may be asked to indemnify or hold an
Agent Indemnified Party harmless, the Trust shall be advised of all pertinent
facts concerning the situation in question and the Agent Indemnified Party shall
use reasonable care to identify and notify the Trust promptly concerning any
situation which presents or appears likely to present a claim for
indemnification against the Trust. The Trust shall have the option to defend the
Agent Indemnified Party against any claim which may be the subject of
indemnification hereunder. In the event that the Trust elects to defend against
such claim, the defense shall be conducted by counsel chosen by the Trust and
reasonably satisfactory to the Agent Indemnified Party. The Agent Indemnified
Party may retain additional counsel at its expense. Except with the prior
written consent of the Trust, the Agent Indemnified Party shall not confess any
claim or make any compromise in any case in which the Trust will be asked to
indemnify the Agent Indemnified Party.
12.2. INDEMNIFICATION OF THE TRUST. Without limiting the rights of the
Trust under applicable law, the Agent will indemnify and hold the Trust, its
officers, Trustees, employees and controlling persons harmless from all losses,
claims, damages, liabilities or expenses (including reasonable counsel fees and
expenses) from any claim both (a) resulting from (i) the bad faith or gross
negligence of the Agent, its officers, employees or agents, or (ii) any breach
of applicable law by the Agent, its officers, employees or agents, or (iii) any
action of the Agent, its officers, employees or agents which exceeds the legal
authority of the Agent or its authority hereunder, or (iv) any material error or
omission of the Agent, its officers, employees or agents with respect to the
purchase, redemption and transfer of Customers' Shares or the Agent's
verification or guarantee of any Customer signature, and (b) not resulting from
the Agent's actions in accordance with written instructions reasonably believed
by the Agent to have been executed by any person duly authorized by the Trust,
or in reliance upon the Prospectus or Offering Memorandum, as applicable,
Statement of Additional Information or Registration Statement or any instrument
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or stock certificate reasonably believed by the Agent to have been genuine and
signed, countersigned or executed by a person duly authorized by the Trust.
In any case in which the Agent may be asked to indemnify or hold the
Trust or another party harmless, the Agent shall be advised of all pertinent
facts by the Trust or other party concerning the situation in question and the
Trust or other party shall use reasonable care to identify and notify the Agent
promptly concerning any situation which presents or appears likely to present a
claim for indemnification against the Agent. The Agent shall have the option to
defend the Trust or other party against any claim which may be the subject of
indemnification hereunder. In the event that the Agent elects to defend against
such claim, the defense shall be conducted by counsel chosen by the Agent and
reasonably satisfactory to the Trust or other party. The Trust or other party
may retain additional counsel at its expense. Except with the prior written
consent of the Agent, the Trust or other party shall not confess any claim or
make any compromise in any case in which the Agent will be asked to indemnify
the Trust or other party.
12.3. SURVIVAL OF INDEMNITIES. The indemnities granted by the parties
in this Section 12 shall survive the termination of this Agreement.
13. INSURANCE. The Agent shall maintain reasonable insurance coverage
against any and all liabilities which may arise in connection with the
performance of its duties hereunder.
14. NOTICES. All communications and notices to either party hereto
shall be sent to the address or facsimile number of such party set forth by its
name on the signature pages hereto (in the case of the Agent, to the attention
of its President) or such other address or number as shall be provided to the
other party hereto in writing, and shall be duly given if mailed or telegraphed,
sent by facsimile, or delivered by hand or other courier delivery service that
requires written acknowledgement of receipt, to such party at such address.
15. FURTHER ASSURANCES. Each party agrees to perform such further acts
and execute such further documents as are necessary to effectuate the purposes
hereof.
16. TERMINATION. This Agreement may be terminated by each of the
Financial Institution or the Trust, without the payment of any penalty, at any
time upon not more than 60 days' nor less than 30 days' notice. Upon termination
hereof, the Trust shall pay such compensation as may be due the Agent as of the
date of such termination.
17. CHANGES; AMENDMENTS. This Agreement may be changed or amended only
by written instrument signed by both parties.
18. LIMITATION OF SHAREHOLDER, TRUSTEE AND AGENT LIABILITY. The Agent
hereby agrees that obligations assumed by the Trust pursuant to this Agreement
shall be limited in all cases to the Trust and its assets and that neither the
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Agent nor any other person shall seek satisfaction of any such obligation from
the shareholders or any shareholder of the Trust. It is further agreed that
neither the Agent nor any other person shall seek satisfaction of any such
obligations from the Board of Trustees or any individual Trustee or officer of
the Trust. The Trust hereby agrees that obligations assumed by the Agent
pursuant to this Agreement shall be limited in all cases to the Agent and its
assets and that neither the Trust nor any other person shall seek satisfaction
of any such obligation from the officers, directors or shareholders of the
Agent.
19. DIVIDEND PAYMENT DATES. The Trust hereby agrees, with respect to
any series of the Trust that is a money market fund, that dividends otherwise
payable to any Customer on the last business day of each month shall, to the
extent required by the Agent, be distributed on such other date in each month as
the Agent may designate as the dividend distribution date with respect to such
Customer but no more than once a month with respect to each Customer.
20. SUBCONTRACTING BY AGENT. The Agent may, with the written approval
of the Trust (such approval not to be unreasonably withheld or delayed),
subcontract for the performance of the Agent's obligations hereunder with any
one or more persons, including but not limited to any one or more persons which
is an affiliate of the Agent; PROVIDED, HOWEVER, that the Agent shall be as
fully responsible to the Trust for the acts and omissions of any subcontractor
as it would be for its own acts or omissions.
21. COMPLIANCE WITH LAWS AND POLICIES; COOPERATION. The Trust hereby
agrees that it will comply with all laws and regulations applicable to its
operations and the Agent agrees that it will comply with all laws and
regulations applicable to its operations hereunder.
22. AUDIT. The Trust shall maintain or arrange to be maintained
complete and accurate accounting records, in accordance with generally accepted
accounting principles. The Trust shall retain or arrange to be retained such
records for a period of three years from the termination of this Agreement. The
Agent and its designated certified public accountants shall have access to such
records based on reasonable cause and professional judgment during normal
business hours upon reasonable notice to the Trust.
23. MISCELLANEOUS. This Agreement embodies the entire agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof. This Agreement shall be
construed and the provisions thereof interpreted under and in accordance with
the laws of the Commonwealth of Massachusetts. The captions in this Agreement
are included for convenience of reference only and in no way define or limit any
of the provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. This Agreement has been executed on
behalf of the Trust by the undersigned not individually, but in the capacity
indicated. The obligations under this Agreement are not binding upon any of the
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officers, Trustees or shareholders of the Trust individually, but bind only the
trust estate. This Agreement has been executed on behalf of the Agent by the
undersigned not individually, but only in the capacity indicated. The
obligations under this Agreement are not binding upon any of the Agent's
directors, officers, shareholders or controlling persons individually, but bind
only the Agent.
NOTICE ADDRESS: EXCELSIOR FUNDS
Excelsior Funds
0 Xx. Xxxxx Xxxxxx By: /S/ XXXXXX X. XXXXXXXX
Xxxxxx, Xxxxxxxxxxxxx 00000 Xxxxxx X. Xxxxxxxx
Facsimile number: 000-000-0000 President
As officer and not individually
NOTICE ADDRESS: UNITED STATES TRUST OF NEW YORK
United States Trust of New York By: /S/ XXXXX X XXXXXXXX
000 Xxxx 00xx Xxxxxx Name: Xxxxx X. Xxxxxxxx
Xxx Xxxx, XX 00000 Title: Vice President
Facsimile number: 000-000-0000 As officer and not individually
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