Exhibit(h)(3)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
EXCELSIOR TAX-EXEMPT FUNDS, INC.
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 ...................................... 4
3. Fees and Expenses .............................................................................. 5
4. Representations and Warranties of the Transfer Agent ........................................... 6
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 ........................................................ 8
8. Indemnification ................................................................................ 10
9. Standard of Care ............................................................................... 11
10. Year 2000 ...................................................................................... 12
11. Confidential Fund and Transfer Agent Information ............................................... 12
12. Covenants of the Fund and the Transfer Agent ................................................... 13
13. Termination of Agreement ....................................................................... 14
14. Assignment and Third Party Beneficiaries ....................................................... 16
15. Subcontractors ................................................................................. 16
16. Miscellaneous .................................................................................. 17
17. Additional Funds ............................................................................... 19
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TRANSFER AGENCY AND SERVICE AGREEMENT
-------------------------------------
AGREEMENT made as of the 24th day of September, 2001, by and between EXCELSIOR
TAX-EXEMPT FUNDS, INC., a Maryland corporation, 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
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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 common stock ("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 Articles of Incorporation 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.
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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. 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
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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; and
(e) New Procedures. New procedures as to who shall provide certain
of these services in Section 1 may be established in writing from
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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 TPA's 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
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Funds and not as a recordkeeper for the Plans.
2.3 Transactions identified under Section 2 of this Agreement shall be
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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
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(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 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 which 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
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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.
5. Representations and Warranties of the Fund
------------------------------------------
The Fund represents and warrants to the Transfer Agent that:
5.1 It is a corporation duly organized and existing and in good standing
under the laws of the State of Maryland.
5.2 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
5.3 All corporate proceedings required by said Articles of Incorporation
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
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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
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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.
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
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.
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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 call-back. Fund
must report any objections to the execution of an order within
thirty (30) days.
7. Data Access and Proprietary Information
---------------------------------------
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("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;
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(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 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
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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 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;
(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
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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 the 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
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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 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
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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,
-12-
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) 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 addition 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 Directors of
the Fund authorizing the appointment of the Transfer Agent and the
execution and delivery of this Agreement; and
(b) A copy of the Articles of Incorporation and By-Laws of the Fund
and all amendments thereto.
-13-
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 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)
from the date hereof year (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.
-14-
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 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 15th
through March 30th, 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.
-15-
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 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
-16-
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 Directors 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 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
-17-
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, microcard, 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.
16.12 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 Tax-Exempt Funds, Inc.
c/o SEI Investments Mutual Funds Services
Xxxxxxx Xxxxxx Xxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
-18-
(c) With copies to:
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx 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 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.
-19-
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 TAX-EXEMPT FUNDS, INC.
BY: /s/ Xxxxx Xxxxxxx
---------------------------
Chief Financial Officer
ATTEST: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------
STATE STREET BANK AND TRUST COMPANY
BY: /s/ Xxxxx Hooly
--------------------------
Executive Vice President
ATTEST: signature illegible
-------------------
-20-
SCHEDULE A
Long-Term Tax Exempt Fund
Intermediate-Term Tax Exempt Fund
Short-Term Tax-Exempt Securities Fund
New York Intermediate-Term Tax-Exempt Fund
California Tax-Exempt Income Fund
Tax-Exempt Money Fund
New York Tax-Exempt Money Fund
EXCELSIOR TAX-EXEMPT STATE STREET BANK AND TRUST
FUNDS, INC. 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 terms 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).
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 TAX-EXEMPT FUNDS, INC. STATE STREET BANK AND TRUST
COMPANY
BY: /s/ Xxxxx Xxxxxxx BY: /s/ Xxxxx Hooly
----------------------- ------------------
Chief Financial Officer
-2-
SCHEDULE 3.1
FEES
Effective September 24, 2001 through September 24, 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 24, 2001 through September 24, 2002
(continued)
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
.. Control
. Input of daily prices and dividend rates
. Processing of dividend and capital gain distributions
- 2 -
SCHEDULE 3.1
FEES
Effective September 24, 2001 through September 24, 2002
(continued)
. 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 24, 2001 through September 24, 2002
(continued)
Correspondence: Any correspondence (letter) initiated by Boston Financial will
result in a correspondence fee.
EXCELSIOR TAX-EXEMPT FUNDS, INC. STATE STREET BANK AND TRUST
COMPANY
BY: /s/ Xxxxx Xxxxxxx BY: /s/ Xxxxx Hooly
------------------ ----------------
Chief Financial Officer
-4-