AMENDED AND RESTATED MUTUAL FUNDS
SUB-TRANSFER AGENCY AGREEMENT
AGREEMENT made as of July 31, 1998 by and between United States Trust
Company of New York ("U.S. Trust"), and Chase Global Funds Services Company
("Sub-Transfer Agent").
W I T N E S S E T H:
WHEREAS, Excelsior Tax-Exempt Funds, Inc. (the "Company"), a Maryland
corporation, is registered as an open-end investment company under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Company is authorized to issue shares of Common Stock in
separate series and classes representing interests in separate portfolios of
securities and other assets;
WHEREAS, the Company has retained U.S. Trust to serve as the Company's
transfer agent, registrar and dividend disbursing agent;
WHEREAS, U.S. Trust desires to assign its duties and obligations with
respect to the provision of such services to Sub-Transfer Agent, and the Company
has acknowledged the right of U.S. Trust to make such assignment provided U.S.
Trust shall be as fully responsible to the Company for the acts and omissions of
Sub-Transfer Agent as U.S. Trust is for its own acts and omissions;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. U.S. Trust hereby appoints Sub-Transfer Agent to serve as
sub-transfer agent, sub-registrar and sub-dividend disbursing agent for each
class and/or series of Common Stock of the Company with respect to its existing
Funds (as hereinafter defined) for the period and on the terms set forth in this
Agreement. In the event that the Company establishes additional classes or
series other than the Common Stock of the Funds covered by this Agreement with
respect to which U.S. Trust desires to retain Sub-Transfer Agent to serve as
sub-transfer agent, sub-registrar and sub-dividend disbursing agent hereunder,
U.S. Trust shall notify Sub-Transfer Agent in writing, whereupon such fund 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 the compensation payable on behalf of such new Fund, may be modified
in writing by U.S. Trust and Sub-Transfer Agent at the time). Sub-Transfer Agent
accepts such appointment and agrees to furnish the services herein set forth in
return for the compensation as provided in Paragraph 5 of this Agreement.
2. REPRESENTATIONS AND WARRANTIES.
(a) U.S. Trust and Sub-Transfer Agent represent and warrant to each
other that:
(i) it is empowered under applicable laws and by its charter and
by-laws to enter into and perform this Agreement;
(ii) all requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement;
(iii) it is duly registered as a transfer agent under Section 17A
of the Securities Exchange Act of 1934, as amended (the "1934 Act"). Each shall
promptly give written notice to the other and the Company in the event that its
registration is revoked or a proceeding is
commenced that could result in such revocation;
(iv) it has been in, and shall continue to be in, compliance with
all provisions of law, including Section 17A(c) of the 1934 Act, required in
connection with the performance of its duties under this Agreement;
(v) it has, and will continue to have, access to the facilities,
personnel and equipment required to fully perform its duties and obligations
hereunder;
(vi) no legal or administrative proceedings have been instituted
or threatened which would impair its ability to perform its duties and
obligations under this Agreement; and
(vii) its entrance into this Agreement shall not cause a material
breach or be in material conflict with any other agreement or obligation of it
or any law or regulation applicable to it;
U.S. Trust represents and warrants to Sub-Transfer Agent that:
(i) U.S. Trust is a state chartered bank and trust company
organized and existing under the laws of the State of New York;
(b) Sub-Transfer Agent represents and warrants to U.S. Trust that:
(i) Sub-Transfer Agent is a Delaware corporation, duly organized
and existing and in good standing under the laws of Delaware;
3. DELIVERY OF DOCUMENTS. U.S. Trust has furnished Sub-Transfer Agent with
copies properly certified or authenticated of each of the following:
(a) Resolutions of the Company's Board of Directors authorizing the
appointment of U.S. Trust as transfer agent, registrar and dividend
disbursing agent for each class and/or series of Common Stock of the Company
and approving the Mutual Funds Transfer Agency Agreement made as of September
1, 1995 by and between the Company and U.S. Trust;
(b) Incumbency and signature certificates identifying and containing
the signatures of the Company's officers and/or the persons authorized to
sign Written Instructions, as hereafter defined, on behalf of the Company;
(c) The Company's Charter;
(d) The Company's By-Laws;
(e) Resolutions of the Company's Board of Directors appointing U.S.
Trust as the investment adviser to the Company's Tax-Exempt Money,
Intermediate-Term Tax-Exempt, Long-Term Tax-Exempt, New York
Intermediate-Term Tax-Exempt, California Intermediate-Term Tax-Exempt and
Short-Term Tax-Exempt Securities Funds (herein "the Funds") and resolutions
of the Company's Board of Directors and Fund shareholders ("Shareholders")
approving an Investment Advisory Agreement between U.S. Trust and the Company
dated as of February 6, 1985, as amended; and an Investment Advisory
Agreement between U.S. Trust and the Company dated as of May 11, 1990, as
amended (the "Advisory Agreements");
(f) Resolutions of the Company's Board of Directors appointing
Edgewood Services, Inc. (the "Distributor") as the Company's distributor for
the Funds and approving a proposed Distribution Agreement between the
Distributor and the Company dated as of August 1, 1995 (the "Distribution
Agreement");
(g) Resolutions of the Company's Board of Directors appointing
Federated Administrative Services ("Federated") and Mutual Funds Service
Company ("MFSC") as the administrators for the Funds and approving a proposed
Administration Agreement among Federated, MFSC and the Company dated as of
August 1, 1995 (the "Administration Agreement");
(h) The Advisory Agreements, the Distribution Agreement and the
Administration Agreement;
(i) The Company's Notification of Registration filed pursuant to
Section 8(a) of the 1940 Act on Form N-8A with the Securities and Exchange
Commission ("SEC") on August 31, 1984;
(j) Post-Effective Amendment No. 18 to the Company's Registration
Statement on Form N-1A under the 1940 Act and the 1933 Act, as filed with the
SEC on August 1, 1995 (File No. 2-93068) relating to shares of the Company's
Class A Common Stock, $.001 par value per share, which represent interests in
the Tax-Exempt Money Fund; Class B Common Stock, $.001 par value per share,
which represent interests in the Intermediate-Term Tax-Exempt Fund; Class C
Common Stock, $.001 par value per share, which represent interests in the
Long-Term Tax-Exempt Fund; Class D Common Stock, $.001 par value per share,
which represent interests in the New York Intermediate-Term Tax-Exempt Fund;
Class E Common Stock, $.001 par value per share, which represent interests in
the California Intermediate-Term Tax-Exempt Fund; and Class F Common Stock,
$.001 par value per share, which represent interests in the Short-Term
Tax-Exempt Securities Fund; (such shares and shares of the Company hereafter
classified by the Company's Board of Directors are hereinafter collectively
called "Shares"), and all amendments thereto; and
(k) The Company's most recent prospectuses (such prospectuses, as
currently in effect, and all amendments and supplements thereto and future
versions thereof are herein called the "Prospectuses").
U.S. Trust will furnish Sub-Transfer Agent from time to time with copies
of all amendments of or supplements to the foregoing, if any, and with
comparable documents with respect to any Fund of the Company organized after
the date of this Agreement that is covered by this Agreement. U.S. Trust
shall also deliver to Sub-Transfer Agent the following documents on
or before the effective date of any increase or decrease in the total number of
Shares authorized to be issued by the Company: (a) a certified copy of the
amendment of the Articles of Incorporation giving effect to such increase or
decrease, and (b) in the case of an increase, if the appointment of U.S. Trust
was theretofore expressly limited, a certified copy of a resolution of the Board
of Directors of the Company increasing the authority of U.S. Trust.
4. SERVICES PROVIDED
(a) Sub-Transfer Agent will provide the following services subject
to the control, direction and supervision of U.S. Trust and in compliance
with the objectives, policies and limitations set forth in the Company's
Registration Statement, Charter and By-Laws; applicable laws and regulations;
and all resolutions and policies implemented by the Board of Directors.
The following is a general description of the transfer agency services
Sub-Transfer Agent shall provide to the Company.
A. SHAREHOLDER RECORDKEEPING. Maintain records showing for each
Fund shareholder the following: (i) name, address,
appropriate tax certification and tax identifying number;
(ii) number of shares of each Fund; (iii) historical
information including, but not limited to, dividends paid
and date and price of all transactions including individual
purchase and redemptions and appropriate supporting
documents; and (iv) any dividend reinvestment order,
application, dividend to a specific address and
correspondence relating to the current maintenance of the
account.
B. SHARE ISSUANCE. Record the issuance of shares of each Fund.
Except as specifically agreed in writing between U.S. Trust
and Sub-Transfer
Agent, Sub-Transfer Agent shall have no obligation when
countersigning and issuing and/or crediting shares to
take cognizance of any other laws relating to the issue
and sale of such shares except insofar as policies and
procedures of the Stock Transfer Association recognize such
laws. Sub-Transfer Agent shall notify U.S. Trust and the
Company in case any proposed issue of shares by the
Company shall result in an over-issuance. In case any issue
of shares would result in such an over-issue, Sub-Transfer
Agent shall refuse to issue said shares and shall not
countersign and issue certificates (if any) for such shares.
C. PURCHASE ORDERS. Process all orders for the purchase of
shares of the Company in accordance with the Company's
Prospectuses, including electronic transmissions, which the
Company has acknowledged it has authorized. Upon receipt of
any check or other payment for purchase of shares of the
Company from an investor, Sub-Transfer Agent will (i) stamp
the order or other documentation with the date and time of
receipt, (ii) forthwith process the same for collection,
(iii) determine the amounts thereof due the Company, and
notify U.S Trust and the Company of such determination and
deposit, such notification to be given on a daily basis
of the total amounts determined and deposited to the
Company's custodian bank account during such day.
Sub-Transfer Agent shall then credit the share account of
the investor with the number of Fund shares to be purchased
made on the date such payment is received by Sub-Transfer
Agent, as set forth in the
Company's Prospectus and shall promptly mail a confirmation
of said purchase to the investor, all subject to any
instructions which the Company or U.S. Trust may give to
Sub-Transfer Agent with respect to the timing or manner of
acceptance of orders for shares relating to payments so
received by it. Any purchase order received by Sub-Transfer
Agent, which is not in good order will be rejected
immediately.
D. REDEMPTION ORDERS. Receive and stamp with the date and time
of receipt all requests for redemptions or repurchase of
shares held in certificate or non-certificate form, and
process redemptions and repurchase requests as follows: (i)
if such certificate or redemption request complies with the
applicable standards approved by the Company, Sub-Transfer
Agent shall on each business day notify the Company of the
total number of shares presented and covered by such
requests received by Sub-Transfer Agent on such day; (ii)
within the time specified in the Prospectus and if not so
specified on or prior to the seventh calendar day succeeding
any such requests received by Sub-Transfer Agent, shall
notify The Chase Manhattan Bank, N.A. (the "Custodian"),
subject to instructions from the Company or U.S. Trust, to
transfer monies to such account as designated by
Sub-Transfer Agent for such payment to the redeeming
shareholder of the applicable redemption or repurchase
price; (iii) if any such certificate or request for
redemption of repurchase does not comply with applicable
standards, Sub-Transfer Agent shall promptly notify the
investor of such fact, together with the reason therefor,
and shall effect such redemption at the Company's price
next determined after receipt of documents complying with
said standards.
E. TELEPHONE ORDERS. Process redemptions, exchanges and
transfers of Fund shares upon telephone instructions from
qualified shareholders in accordance with the procedures set
forth in the Company's Prospectuses. The administrator shall
be permitted to redeem, exchange and/or transfer Fund shares
from any account for which such services have been
authorized, including electronic transmissions.
F. TRANSFER OF SHARES. Upon receipt by Sub-Transfer Agent of
documentation in proper form to effect a transfer of shares,
including in the case of shares for which certificates have
been issued the share certificates in proper form for
transfer, Sub-Transfer Agent will register such transfer on
the Company's shareholder records maintained by Sub-Transfer
Agent pursuant to instructions received from the transferor,
cancel the certificates representing such shares, if any,
and if so requested, countersign, register, issue and mail
by first class mail new certificates for the same or a
smaller whole number of shares.
G. SHAREHOLDER COMMUNICATIONS. Address and mail all
communications by the Company to its shareholders promptly
following the delivery
by the Company or U.S. Trust of the material to be mailed.
H. PROXY MATERIALS. Prepare shareholder lists, mail and certify
as to the mailing of proxy materials, receive the tabulated
proxy cards, render periodic reports to the Company and U.S.
Trust on the progress of such tabulation, and provide the
Company with inspectors of election at any meeting of
shareholders.
I. SHARE CERTIFICATES. If a shareholder of the Company requests
a certificate representing his shares, Sub-Transfer Agent as
sub-transfer agent will countersign and mail, a share
certificate to the investor at his/her address as it appears
on the Company's transfer books. Sub-Transfer Agent shall
supply, at the expense of the Company a supply of blank
share certificates. The certificates shall be properly
signed, manually or by facsimile, as authorized by the
Company, and shall bear the Company's seal or facsimile; and
notwithstanding the death, resignation or removal of any
officers of the Company authorized to sign certificates,
Sub-Transfer Agent may, until otherwise directed by the
Company or U.S. Trust, continue to countersign certificates
which bear the manual or facsimile signature of such
officer.
J. RETURNED CHECKS. In the event that any check or other order
for the payment of money is returned unpaid for any reason,
Sub-Transfer Agent will take such steps, including
redepositing the check for
collection or returning the check to the investor, as
Sub-Transfer Agent may, at its discretion, deem appropriate
and notify the Company and U.S. Trust of such action, or as
the Company or U.S. Trust may instruct. However, subject to
Paragraph 7(b) below, the Company remains ultimately liable
for any returned checks of its shareholders.
K. SHAREHOLDER CORRESPONDENCE. Acknowledge all correspondence
from shareholders relating to their share accounts and
undertake such other shareholder correspondence as may from
time to time be mutually agreed upon.
L. TAX REPORTING. Sub-Transfer Agent shall issue appropriate
shareholder tax forms on an annual basis.
M. DIVIDEND DISBURSING. Sub-Transfer Agent will serve as the
Company's dividend disbursing agent. Sub-Transfer Agent will
prepare and mail checks, place wire transfers of credit
income and capital gain payments to shareholders. The
Company or U.S. Trust will advise Sub-Transfer Agent of the
declaration of any dividend or distribution and the record
and payable date thereof at least five (5) days prior to the
record date. Sub-Transfer Agent will, on or before the
payment date of any such dividend or distribution, notify
the Company's Custodian of the estimated amount required to
pay any portion of such dividend or distribution payable in
cash, and on or before the payment date of such
distribution, the Company will instruct its Custodian to
make available to Sub-
Transfer Agent sufficient funds for the cash amount to be
paid out. If a shareholder is entitled to receive additional
shares by virtue of any such distribution or dividend,
appropriate credits will be made to each shareholder's
account.
(b) Sub-Transfer Agent will also:
(i) provide office facilities with respect to the provision of
the services contemplated herein (which may be in the offices of Sub-Transfer
Agent or a corporate affiliate of Sub-Transfer Agent);
(ii) provide the services of individuals to serve as officers of
the Company who will be designated by Sub-Transfer Agent and elected by the
Company's Board of Directors subject to reasonable Board approval;
(iii) provide or otherwise obtain personnel sufficient, in
Sub-Transfer Agent's sole discretion, for provision of the services contemplated
herein;
(iv) furnish equipment and other materials, which Sub-Transfer
Agent, in its sole discretion, believes are necessary or desirable for provision
of the services contemplated herein; and
(v) keep records relating to the services provided hereunder in
accordance with the 1940 Act and the rules thereunder. To the extent required by
the 1940 Act and the rules thereunder, Sub-Transfer Agent agrees that all such
records prepared or maintained by Sub-Transfer Agent relating to the services
provided hereunder are the property of the Company and will be preserved for the
periods prescribed under the 1940 Act and the rules thereunder, maintained at
the Company's expense, and made available in accordance with such Act and rules.
Sub-Transfer Agent further agrees to surrender promptly to the Company upon its
request and cease to retain in its records and files those records and documents
created and maintained by
Sub-Transfer Agent pursuant to this Agreement.
5. FEES; EXPENSES; EXPENSE REIMBURSEMENT.
(a) As compensation for the services rendered to the Company for
U.S. Trust pursuant to this Agreement, U.S. Trust shall pay Sub-Transfer
Agent monthly $15.00 per account and subaccount of each Fund of the Company
per year or for any portion of a year plus Sub-Transfer Agent's out-of-pocket
expenses relating to such services, including, but not limited to, expenses
of postage, telephone, TWX rental and line charges, communication forms, and
checks and check processing. Such fees are to be billed monthly and shall be
due and payable upon receipt of the invoice. Upon any termination of this
Agreement before the end of any month, the fee for the part of the month
before such termination shall be prorated according to the proportion which
such part bears to the full monthly period and shall be payable upon the date
of termination of this Agreement.
(b) For the purpose of determining fees calculated as a function of
the Company's assets, the value of the Company's assets and net assets shall
be computed as required by its Prospectuses, generally accepted accounting
principles, and resolutions of the Board of Directors.
(c) Sub-Transfer Agent may, in its sole discretion, from time to
time employ or associate with such person or persons as may be appropriate to
assist Sub-Transfer Agent in the performance of this Agreement. Such person
or persons may be officers and employees who are employed or designated as
officers by both Sub-Transfer Agent and the Company. The compensation of such
person or persons for such employment shall be paid by Sub-Transfer Agent and
no obligation will be incurred by or on behalf of the Company or U.S. Trust
in such respect.
(d) U.S. Trust may request additional services, additional
processing, or special reports. U.S. Trust shall submit such requests in
writing together with such specifications and documentation as may
be reasonably required by Sub-Transfer Agent. If Sub-Transfer Agent elects to
provide such services or arrange for their provision, it shall be entitled to
additional fees and expenses at its customary rates and charges as approved by
U.S. Trust.
(e) Sub-Transfer Agent will bear all of its own expenses in
connection with the performance of the services under this Agreement except
as otherwise expressly provided herein. U.S. Trust agrees to promptly
reimburse Sub-Transfer Agent for any equipment and supplies specially ordered
by or for the Company through Sub-Transfer Agent, and for any other expenses
not contemplated by this Agreement that Sub-Transfer Agent may incur on the
Company's behalf, as consented to by U.S. Trust and the Company from time to
time. Expenses to be incurred in the operation of the Company and to be borne
by the Company, include, but are not limited to: taxes; interest; brokerage
fees and commissions, salaries and fees of officers and directors who are not
officers, directors, shareholders or employees of U.S. Trust, or the
Company's investment adviser, or distributor or other service providers; SEC
and state Blue Sky registration and qualification fees, levies, fines and
other charges; XXXXX filing fees, processing services and related fees;
advisory and administration fees; charges and expenses of pricing and data
services, independent public accountants and custodians; insurance premiums
including fidelity bond premiums; legal expenses; costs of maintenance of
corporate existence; expenses of typesetting and printing of prospectuses for
regulatory purposes and for distribution to current shareholders of the
Company (the Company's distributor to bear the expense of all other printing,
production, and distribution of prospectuses, statements of additional
information, and marketing materials except as otherwise approved by the
Board of Directors of the Company); expenses of printing and production costs
of shareholders' reports and proxy statements and materials; costs and
expenses
of Fund stationery and forms; costs and expenses of special telephone and
data lines and devices; costs associated with corporate, shareholder, and
Board meetings; trade association dues and expenses; and any extraordinary
expenses and other customary Fund expenses. In addition, Sub-Transfer Agent
may utilize one or more independent pricing services, approved from time to
time by the Board, to obtain securities prices and to act as backup to the
primary pricing services, in connection with determining the net asset values
of the Company, and U.S. Trust will reimburse Sub-Transfer Agent for the
Company's share of the cost of such services based upon the actual usage, or
a pro rata estimate of the use, of the services for the benefit of the
Company.
(f) All fees, out-of-pocket expenses, or additional charges of
Sub-Transfer Agent shall be billed on a monthly basis and shall be due and
payable upon receipt of the invoice.
Sub-Transfer Agent will render, after the close of each month in which
services have been furnished, a statement reflecting all of the charges for such
month.
6. PROPRIETARY AND CONFIDENTIAL INFORMATION. Sub-Transfer Agent agrees on
behalf of itself and its employees to treat confidentially and as proprietary
information of the Company, all records and other information relative to the
Company's prior, present or potential shareholders, and to not use such records
and information for any purpose other than performance of Sub-Transfer Agent's
responsibilities and duties hereunder. Sub-Transfer Agent may seek a waiver of
such confidentiality provisions by furnishing reasonable prior notice to the
Company and obtaining approval in writing from the Company, which approval shall
not be unreasonably withheld and may not be withheld where Sub-Transfer Agent
may be exposed to civil or criminal contempt proceedings for failure to comply,
when requested to divulge such information by duly constituted authorities.
Waivers of confidentiality are automatically
effective without further action by Sub-Transfer Agent with respect to Internal
Revenue Service levies, subpoenas and similar actions, or with respect to any
request by the Company.
7. DUTIES, RESPONSIBILITIES, AND LIMITATION OF LIABILITY.
(a) In the performance of its duties hereunder, Sub-Transfer Agent
shall be obligated to act in good faith in performing the services provided
for under this Agreement. In performing its services hereunder, Sub-Transfer
Agent shall be entitled to rely on any oral or written instructions, notices
or other communications, including electronic transmissions, from the Company
and its custodians, officers and directors, investors, agents and other
service providers which Sub-Transfer Agent reasonably believes to be genuine,
valid and authorized. Sub-Transfer Agent shall also be entitled to consult
with and rely on the advice and opinions of outside legal counsel retained by
the Company, as necessary or appropriate.
(b) Sub-Transfer Agent shall not be liable for any error of judgment
or mistake of law or for any loss or expense suffered by the Company or U.S.
Trust, in connection with the matters to which this Agreement relates, except
for a loss or expense caused by or resulting from willful misfeasance, bad
faith or negligence on Sub-Transfer Agent's part in the performance of its
duties or from reckless disregard by Sub-Transfer Agent of its obligations
and duties under this Agreement. Any person, even though also an officer,
director, partner, employee or agent of Sub-Transfer Agent, who may be or
become an officer, director, partner, employee or agent of the Company, shall
be deemed when rendering services to the Company in that capacity or acting
on any business of the Company in that capacity (other than services or
business in connection with Sub-Transfer Agent's duties hereunder) to be
rendering such services to or acting solely for the Company and not as an
officer, director, partner, employee or agent or person under the control
or direction of Sub-Transfer Agent even though paid by Sub-Transfer Agent.
(c) Subject to Paragraphs 7(b) and (d), Sub-Transfer Agent shall not
be responsible for, and U.S. Trust shall indemnify and hold Sub-Transfer
Agent harmless from and against, any and all losses, damages, costs,
reasonable attorneys' fees and expenses, payments, expenses and liabilities
arising out of or attributable to:
(i) all actions of Sub-Transfer Agent or its officers or agents
required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Sub-Transfer Agent or its officers
or agents of information, records, or documents which are received by
Sub-Transfer Agent or its officers or agents and furnished to it or them by or
on behalf of the Company, and which have been prepared or maintained by the
Company or any third party on behalf of the Company other than Sub-Transfer
Agent or any of its affiliates;
(iii) U.S. Trust's refusal or failure to comply with the terms of
this Agreement or U.S. Trust's lack of good faith, or its actions, or lack
thereof, involving gross negligence or willful misfeasance;
(iv) the material breach of any representation or warranty of
U.S. Trust hereunder;
(v) the legal taping or other form of legal recording of
telephone conversations or other legal forms of electronic communications with
investors and shareholders, or reliance by Sub-Transfer Agent or its officers or
agents on telephone or other electronic instructions of any person acting on
behalf of a shareholder or shareholder account for which telephone or other
electronic services have been authorized;
(vi) the reliance on or the carrying out by Sub-Transfer Agent
or its officers or agents of any proper instructions reasonably believed to
be duly authorized, or requests of U.S. Trust or the Company or recognition
by Sub-Transfer Agent or its officers or agents of any share certificates
which are reasonably believed to bear the proper signatures of the officers
of the Company and the proper countersignature of any transfer agent or
registrar of the Company;
(vii) any delays, inaccuracies, errors in or omissions from
data provided to Sub-Transfer Agent or its officers or agents by data and
pricing services;
(viii) the offer or sale of shares by the Company in violation
of any requirement under the Federal securities laws or regulations or the
securities laws or regulations of any state, or in violation of any stop
order or other determination or ruling by any Federal agency or any state
agency with respect to the offer or sale of such shares in such state (1)
resulting from activities, actions, or omissions by the Company or its other
service providers and agents other than Sub-Transfer Agent or its officers or
agents or any of their affiliates, or (2) existing or arising out of
activities, actions or omissions by or on behalf of the Company other than by
Sub-Transfer Agent or its officers or agents or any of their affiliates prior
to the effective date of this Agreement;
(ix) any failure of the Company's registration statement to
comply with the 1933 Act and the 1940 Act (including the rules and
regulations thereunder) and any other applicable laws, or any untrue
statement of a material fact or omission of a material fact necessary to make
any statement therein not misleading in a Fund's prospectus, unless such
failure, misstatement or omission relates to, results from or otherwise
arises in connection with, actions, inactions and/or information provided by
Sub-Transfer Agent or its officers or agents;
and
(x) the actions taken by the Company, its investment adviser,
and its distributor in compliance with applicable securities, tax,
commodities and other laws, rules and regulations, or the failure to so
comply.
(d) Notwithstanding anything herein to the contrary, U.S. Trust
shall be as fully responsible to the Company for the acts and omissions of
any sub-transfer agent as U.S. Trust is for its own acts and omissions.
8. TERM. This Agreement shall become effective on the date first
hereinabove written. This Agreement may be modified or amended from time to time
by mutual agreement between the parties hereto. This Agreement shall continue in
effect unless terminated by either party on forty-five (45) days' prior written
notice provided that should Sub-Transfer Agent fail to be registered pursuant to
Section 17A of the 1934 Act as a transfer agent at any time, the Company or U.S.
Trust may, on written notice to Sub-Transfer Agent, immediately terminate this
Agreement. Upon termination of this Agreement, U.S. Trust shall pay to
Sub-Transfer Agent such compensation and any out-of-pocket or other reimbursable
expenses which may become due or payable under the terms hereof as of the date
of termination or after the date that the provision of services ceases,
whichever is later.
9. NOTICES. Any notice required or permitted hereunder shall be in writing
and shall be deemed to have been given when delivered in person or by certified
mail, return receipt requested, to the parties at the following address (or such
other address as a party may specify by notice to the other):
If to the Company:
Excelsior Tax-Exempt Funds, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Assistant Treasurer
Fax: (000) 000-0000
With a copy to:
Drinker Xxxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: W. Xxxxx XxXxxxxx, III
Fax: (000) 000-0000
If to U.S. Trust:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Xx., Esq.
Fax: (000) 000-0000
If to Sub-Transfer Agent:
Chase Global Funds Services Company
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: President
Fax: (000) 000-0000
Notice shall be effective upon receipt if by mail, on the date of personal
delivery (by private messenger, courier service or otherwise) or upon confirmed
receipt of telex or facsimile, whichever occurs first.
10. ASSIGNMENT AND DELEGATION. This Agreement shall not be assigned and the
rights, duties and obligations of the parties hereunder may not be subcontracted
or delegated by either of the parties hereto without the prior consent in
writing of the other party.
11. WAIVER. The failure of a party to insist upon strict adherence to any
term of this
Agreement on any occasion shall not be considered a waiver nor shall it deprive
such party of the right thereafter to insist upon strict adherence to that term
or any term of this Agreement. Any waiver must be in writing signed by the
waiving party.
12. FORCE MAJEURE. Sub-Transfer Agent shall not be responsible or liable
for any failure or delay in performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
control, including without limitation, acts of God, earthquakes, fires, floods,
wars, acts of civil or military authorities, or governmental actions, nor shall
any such failure or delay give the Company the right to terminate this
Agreement. During the term of this Agreement, at no additional cost to the
Company or U.S. Trust, Sub-Transfer Agent shall provide a facility capable of
safeguarding the transfer agency and dividend disbursing records of the Company
in case of damage to the primary facility providing those services (the "Back-Up
Facility"). Transfer of the transfer agency and dividend records of the Company
to the Back-Up Facility shall be at Sub-Transfer Agent's expense, shall commence
immediately after damage to the primary facility results in an inability to
provide the transfer agency and dividend disbursing services, and shall be
completed within 72 hours of commencement. After the primary facility has
recovered, Sub-Transfer Agent shall again utilize it to provide the transfer
agency and dividend disbursing services to the Company at no additional cost to
the Company. Sub-Transfer Agent shall use reasonable efforts to provide the
services described in this Agreement from the Back-Up Facility.
13. USE OF NAME. Sub-Transfer Agent and U.S. Trust agree not to use the
other's name nor the name of the Company nor the names of such other's nor the
Company's affiliates, designees, or assignees in any prospectus, sales
literature, or other printed material written in a
manner not previously approved by the other or the Company or such other's or
the Company's affiliates, designees, or assignees except where required by the
SEC or other regulatory authorities.
14. AMENDMENTS. This Agreement may be modified or amended from time to time
by mutual written agreement between the parties. No provision of this Agreement
may be changed, discharged, or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, discharge
or termination is sought.
15. SEVERABILITY. If any provision of this Agreement is invalid or
unenforceable, the balance of the Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance it shall nevertheless
remain applicable to all other persons and circumstances.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE SUBSTANTIVE LAWS
OF THE STATE OF NEW YORK, INCLUDING THE DETERMINATION OF WHEN AN "ASSIGNMENT"
HAS OCCURRED.
17. THIRD PARTY BENEFICIARY. U.S. Trust and Sub-Transfer Agent expressly
agree that the Company is a third party beneficiary hereof and expressly agree
that the Company may enforce the provisions hereof.
This Agreement may be executed in one or more counterparts and all
such counterparts will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers designated below as of the date first written
above.
CHASE GLOBAL FUNDS SERVICES
COMPANY
/s/ Xxxxxx X. Xxxxx
--------------------
Name: Xxxxxx X. Xxxxx
Title: Vice Chairman
UNITED STATES TRUST COMPANY
OF NEW YORK
/s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
