EXHIBIT (13)(b)
AMENDED AND RESTATED
ADMINISTRATION AGREEMENT
This AGREEMENT made as of July 31, 1998 by and among EXCELSIOR FUNDS,
INC., a Maryland corporation (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
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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
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Administrators with copies, properly certified or authenticated, of each of the
following:
(a) Resolutions of the Company's Board of Directors authorizing the
appointment of the Administrators to provide certain administration services to
the Company and approving this Agreement;
(b) The Company's Articles of Incorporation ("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") on August
8, 1984;
(e) The Company's most recent Post-Effective Amendment to its
Registration Statement on Form N-1A (No. 2-92665) (the "Registration Statement")
under the Securities Act of 1933 and the 1940 Act, as filed with the SEC;
(f) The Company's Amended and Restated 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
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Company's Board of Directors, and as delineated on one or more Exhibit 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 Directors;
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(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 laws and regulations,
including those required by applicable Federal 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 Amended
and Restated 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 Directors 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 Directors, 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;
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(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
Directors and will conform to, and comply with, the requirements of the 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.
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For the services rendered pursuant to this Agreement for all Funds
(except the International, Pacific/Asia, Pan European, Latin America and
Emerging Markets Funds), the Administrators shall be entitled jointly to a fee
based on the average net assets of the Company, determined at the following
annual rates applied to the average combined daily net assets of all of the
Funds (except the International, Pacific/Asia, Pan European, Latin America and
Emerging Markets Funds) and all of the investment portfolios of Excelsior Tax-
Exempt Funds, Inc. and Excelsior Institutional Trust (the "Trust")(except the
International Equity Fund of the Trust): .20% of the first $200 million; .175%
of the next $200 million; and .15% of any amount in excess of $400 million.
Each Fund (except the International, Pacific/Asia, Pan European, Latin America
and Emerging Markets Funds) will pay a portion of the total fee payable by the
Company in an amount equal to the proportion that such Fund's average daily net
assets bears to the total average daily net assets of all the Funds of the
Company (except the International, Pacific/Asia, Pan European, Latin America and
Emerging Markets Funds). For the services provided to the International,
Pacific/Asia, Pan European, Latin America and Emerging Markets Funds, the
Administrators shall be entitled jointly to a fee, at the annual rate of .20% of
the average daily net assets of each such Fund. 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.
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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 Directors.
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 directors who are not officers, directors, shareholders or
employees of the Administrators, or the Company's investment adviser or
distributor for the Funds, Securities and Exchange Commission 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,
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that, except pursuant to a distribution plan, the Company will not bear,
directly or indirectly, the cost of any activity which is primarily intended to
result in the distribution of shares of the Funds, and further provided that the
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Administrators may utilize one or more independent pricing services, approved
from time to time by the Board of Directors 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,
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however, that notwithstanding the foregoing, the Administrators shall reimburse
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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
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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
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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
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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. Any person,
even though also an officer, partner, employee or agent of any of the
Administrators, who may be or become an officer, director, 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.
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7. Term. This Agreement shall become effective on July 31, 1998 and,
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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
Directors. 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
Directors or by CGFSC, FAS or U.S. Trust. This Agreement will terminate
automatically in the event of its "assignment" (as defined in the Investment
Company Act 1940). 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. The parties also
agree that the merger between The Chase Manhattan Corporation and Chemical
Banking Corporation and the merger between The Chase Manhattan Bank, N.A. and
Chemical Bank will not constitute an assignment under this Agreement.
8. Governing Law. This Agreement shall be governed by New York law.
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9. Notices. All notices required or permitted herein shall be in writing
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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, Inc.
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
If to CGFSC:
Chase Global Funds Services Company
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telecopier Number: (617) 557-8617
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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,
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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, INC.
/s/ F. S. Wonham
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Name: F. S. Wonham
Title: President and Treasurer
CHASE GLOBAL FUNDS SERVICES
COMPANY
/s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice Chairman
FEDERATED ADMINISTRATIVE
SERVICES
/s/ Xxxxxx X. Xxxxx
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Name:
Title:
U.S. TRUST COMPANY OF
CONNECTICUT
/s/ W. Xxxxxxx Xxxxx
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Name: W. Xxxxxxx Xxxxx
Title: President and CEO
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