SHAREHOLDER SERVICE AGREEMENT
With Respect to Excelsior Institutional Money Fund and
Excelsior Institutional Treasury Money Fund
of
Excelsior Funds (the "Trust")
UST Distributors, Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We wish to enter into this Shareholder Service Agreement (the "Agreement") with
you concerning the provision of support services to your clients ("Clients") who
may from time to time beneficially own shares of beneficial interest in
Excelsior Institutional Money Fund and Excelsior Institutional Treasury Money
Fund (the "Funds") and any other funds as may from time to time be agreed
between the parties. The terms and conditions of this Agreement are as follows:
1. You agree to provide certain of the following support services to Clients who
may from time to time beneficially own shares of the Funds: (i) aggregating and
processing purchase and redemption requests for the Funds from Clients and
placing net purchase and redemption orders with our distributor; (ii) providing
Clients with a service that invests the assets of their accounts in the Funds
pursuant to specific or pre-authorized instructions; (iii) processing dividend
payments from us on behalf of Clients; (iv) providing information periodically
to Clients showing their positions in the Funds; (v) arranging for bank wires;
(vi) responding to Client inquires relating to the services performed by you;
(vii) if required by law, forwarding shareholder communications from us (such as
proxies, shareholder reports, annual and semi-annual financial statements and
dividend distribution and tax notices) to Clients; (viii) forwarding to Clients
proxy statements and proxies containing any proposals regarding this Agreement
or the Shareholder Services Plan related hereto; and (ix) providing such other
similar services as we may reasonably request to the extent you are permitted to
do so under applicable statutes, rules or regulations.
2. You will provide such office space and equipment, telephone facilities and
personnel (which may be any part of the space, equipment and facilities
currently used in your business, or any personnel employed by you) as may be
reasonably necessary or beneficial in order to provide such services to Clients.
3. Neither you nor any of your officers, employees or agents are authorized to
make any representations concerning Excelsior Funds except those contained in
our then current prospectuses for such shares, copies of which will be supplied
by
us to you, or in such supplemental literature or advertising as may be
authorized by us in writing.
4. For all purposes of this Agreement you will be deemed to be an independent
contractor, and will have no authority to act as agent for us in any matter or
in any respect. By your written acceptance of this Agreement, you agree to and
do release, indemnify and hold us harmless from and against any and all direct
or indirect liabilities or losses resulting from requests, directions, actions
or inactions of or by you or your officers, employees or agents regarding your
responsibilities hereunder or the purchase, redemption, transfer or registration
of shares of the Funds by or on behalf of Clients. You and your employees will,
upon request, be available during normal business hours to consult with us or
our designees concerning the performance of your responsibilities under this
agreement.
5. In consideration of the services and facilities provided by you hereunder, we
will pay to you and you will accept as full payment therefor, a fee at the
annual rate of .05 of 1% of the average daily net asset values up to $500
million and .10 of 1% of the average daily net asset values from $500 million
and above of the Funds beneficially owned by your Clients for whom you are the
dealer of record or holder of record or with whom you have a servicing
relationship (the "Clients Shares"), which fee will be computed daily and
payable monthly. By your written acceptance of this Agreement, you agree to and
do waive such portion of the fee payable under this Section 5 as is necessary to
assure that the amount of such fee which is required to be accrued on any day
with respect to your Clients does not exceed the income to be accrued to your
Clients Shares on that day. For purposes of determining the fees payable under
this Section 5, the average daily net asset value of the Clients Shares will be
computed in the manner specified in our registration statement (as the same is
in effect from time to time) in connection with the computation of the net asset
value of the Funds for purposes of purchases and redemptions. Further we may, in
our discretion and without notice, suspend or withdraw the sale of the Funds,
including the sale of such shares to you for the account of any Client or
Clients.
6. Any person authorized to direct the disposition of monies paid or payable by
us pursuant to this Agreement will provide to our Board of Trustees, and our
Trustees will review, at least quarterly, a written report of the amounts so
expended and the purposes for which such expenditures were made. In addition,
you will furnish us or our desingees with such information as we or they may
reasonable request (including, without limitation, periodic certifications
confirming the provision to Clients of the service described herein), and will
otherwise cooperate with us and our designees (including, without limitation,
any auditors designated by us), in connection with the preparation of reports to
our Board of Trustees concerning this Agreement and the monies paid or payable
by us pursuant hereto, as well as any other reports or filings that may be
required by law.
7. We may enter into other similar Shareholder Service Agreements with any other
person or persons without your consent.
8. This agreement will become effective on the date a fully executed copy of
this Agreement is received by us or our designee. Unless sooner terminated, this
Agreement will continue automatically for successive annual periods, provided
such continuance is specifically approved at least annually by us in the manner
described in Section 11. This Agreement is terminable with respect to any Fund,
without penalty, at any time by us (which termination may be by vote of a
majority of our Disinterested Trustees as defined in Section 11) or by you upon
notice to the other party hereto.
9. All notices and other communications to either you or us will be duly given
if mailed, telegraphed, telexed or transmitted by similar telecommunications
device to the appropriate address shown above, or to such other address as
either party shall so provide the other.
10. This Agreement shall be construed in accordance with the internal laws of
the State of New York without giving effect to principles of conflict of laws,
and is non-assignable by the parties hereto.
11. This Agreement has been approved by vote of a majority of (i) our Board of
Trustees and (ii) those Trustees who are not "interested persons" (as defined in
the Investment Company Act of 1940) of us and have no direct or indirect
financial interest in the operation of the Shareholder Services Plan adopted by
us regarding the provision of support services to the beneficial owners of
Excelsior Funds or in any agreements related thereto ("Disinterested Trustees"),
cast in person at a meeting called for the purpose of voting on such approval.
12(a). 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 UST Distributors, Inc. (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 Agents 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 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. 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, 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. The Trust shall not, without the prior written consent
of the Agent Indemnified Party, settle or compromise any claim, or permit a
default or consent to the entry of any judgment in respect thereof unless such
settlement, compromise or consent includes, as an unconditional term thereof,
the giving by the claimant to the Agent Indemnified Party of an unconditional
release from all liability in respect of such claim.
(b). 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, 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, or in reliance upon the Prospectus or Offering
Memorandum, as applicable, Statement of Additional Information or Registration
Statement or any instrument or stock certificate reasonably believed by the
Agent to have been genuine and signed, countersigned or executed by a person
dully 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. The Agent shall not, without the prior written consent
of the Trust, settle or compromise any claim, or permit a default or consent to
the entry of any judgment in respect thereof unless such settlement, compromise
or consent includes, as an unconditional term thereof, the giving by the
claimant to the Trust of an unconditional release from all liability in respect
of such claim.
(c). Survival of Indemnities. The indemnities granted by the parties in this
Section 12 shall survive the termination of this Agreement.
13. If you agree to be legally bound by the provisions of this Agreement, please
sign a copy of this letter where indicated below and promptly return it to
Signature Broker-Dealer Services, Inc.
Very truly yours,
EXCELSIOR FUNDS
By: /S/ XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxxxxx
Title: PRESIDENT
Accepted and agreed to:
UST DISTRIBUTORS, INC.
(Name of Institution)
By: /S/ XXXXXXX X. XXXXXXX
Title: PRESIDENT
Date: 11/25/93
