UST005B
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of October 26, 1993, by and between
Excelsior Funds, a Delaware business trust (the "Trust"), and Signature Broker-
Dealer Services, Inc., a Delaware corporation ("SBDS" or the "Distributor").
W I T N E S E T H:
WHEREAS, the Trust has been organized to operate as an open-end
investment company registered under the Investment Company Act of 1940, as
amended (collectively with the rules and regulations promulgated thereunder, the
"1940 Act") and under the Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, the Shares of Beneficial Interest (par value $0.00001 per
share) of the Trust (the "Shares") are divided into separate series, two of
which, Excelsior Institutional Money Fund and Excelsior Institutional Treasury
Money
Fund (the "Series"), are subject to this Agreement;
WHEREAS, the Trust wishes to engage SBDS to provide certain services
with respect to the distribution of Shares of each Series, and SBDS is willing
to provide such services to the Trust on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. The Trust grants to the Distributor the right, as agent of the
Trust, to solicit and accept orders for the purchase of Shares of each Series
upon the terms hereinbelow set forth during the term of this Agreement. While
this Agreement is in force, the Distributor agrees to use its best efforts to
find purchasers for Shares of each Series.
The Distributor shall have the right, as agent of the Trust, to order
from the Trust the Shares needed, but not more than the Shares needed (except
for clerical errors and errors of transmission), to fill unconditional orders
for Shares of each Series placed with the Distributor, all such orders to be
made in the manner set forth in such Series' then-current prospectus (the
"Prospectus") and then-current statement of additional information (the
"Statement of Additional Information") relating to such Series. The price which
shall be paid to the Trust for the Shares of each Series so purchased shall be
the net asset value per Share as determined in accordance with the provisions of
the Trust's Declaration of Trust and By-Laws and the respective Series'
then-current Prospectus and Statement of Additional Information, as may from
time to time be amended (collectively, the "Governing Instruments"). The
Distributor shall notify the custodian of the Trust with respect to each Series
as of the time, as disclosed in the respective Series' then-current Prospectus,
that the net asset
value of such Series is determined, or such other time as is agreed to in
writing by the Distributor and the Trust) (a "Valuation Time"), on each business
day, or as soon thereafter as the orders placed with the Distributor have been
compiled, of the number of Shares of each Series and the prices thereof which
have been ordered through the Distributor since the respective Valuation Time.
The right granted to the Distributor to place orders for Shares with
the Trust shall be exclusive, except that this exclusive right shall not apply
to Shares issued in the event that an investment company (whether a regulated or
private investment company or a personal holding company) is merged with and
into or consolidated with the Trust or in the event that the Trust acquires, by
purchase or otherwise, all (or substantially all) the assets or the outstanding
shares of any such company; nor shall it apply to Shares issued by the Trust as
a dividend or stock split. The exclusive right to place orders for Shares
granted to the Distributor may be waived by the Distributor by notice to the
Trust in writing, either unconditionally or subject to such conditions and
limitations as may be set forth in such notice to the Trust. The Trust hereby
acknowledges that the Distributor may render distribution and other services to
other parties, including other investment companies. In connection with its
duties hereunder, the Distributor shall also arrange for computation of
performance statistics with respect to each Series and arrange for publication
of current price information in newspapers and other publications.
2. The Shares may be sold by the Distributor on behalf of the Trust, to
any investor or to or through any dealer having a sales agreement with the
Distributor, upon the following terms and conditions:
The public offering price of Shares of each Series, I.E., the price per
Share at which the Distributor or any dealer purchasing Shares through the
Distributor may sell shares to the public, shall be as disclosed in the
respective Series then-current Prospectus.
The Trust shall have the right to suspend the sale of Shares of any
Series if, because of some extraordinary condition, the New York Stock Exchange
(the "Exchange") shall be closed, or if conditions existing during the hours
when the Exchange is open render such action advisable or for any other reason
deemed adequate by the Trust.
3. The Trust agrees that it will, from time to time, but subject to the
necessary approval, if any, of its shareholders and Trustees, take all necessary
action to register such number of Shares of each Series under the 1933 Act as
the Distributor may reasonably be expected to sell.
The Distributor shall be an independent contractor and neither the
Distributor nor any of its directors, officers or employees as such, is or shall
be, solely by reason of this Agreement, an employee of the Trust. It is
understood that Trustees, officers and shareholders of the Trust are or may
become interested in the Distributor, as directors, officers, employees, or
otherwise and that directors, officers and employees of the Distributor are or
may become similarly interested in the Trust and that the Distributor may be or
become interested in the Trust as a shareholder or otherwise. The Distributor is
responsible for its own conduct and the employment, control and conduct (but
only with respect to the duties and obligations of the Distributor hereunder) of
its agents and employees and for any injury to any person through its agents or
employees. The Distributor assumes full responsibility for its agents and
employees under applicable statutes and agrees to pay all employer taxes
thereunder.
4. The Distributor covenants and agrees that, in selling Shares, it
will in all respects conform with the requirements of all state and federal laws
and the Rules of Fair Practice of the National Association of Securities
Dealers, Inc. relating to the sale of Shares, and will indemnify and hold
harmless the Trust and each of its Trustees and officers and each person, if
any, who controls the Trust within the meaning of Section 15 of the 1933 Act or
Section 20 of the Securities Exchange Act of 1934 (the "Indemnified Parties")
against all losses, liabilities, damages, claims or expenses (including the
reasonable cost of investigating or defending any alleged loss, liability,
damages, claim or expense and advances for reasonable counsel fees incurred in
connection therewith) arising from any claim, demand, action or suit
(collectively, "Claims"), (i) arising by reason of any person's acquiring any of
the Shares through the Distributor, which may be based upon the 1933 Act or any
other statute or common law, on account of any wrongful act of the Distributor
or any of its employees (including any failure to conform with any requirement
of any state or federal law or the Rules of Fair Practice of the National
Association of Securities Dealers, Inc. relating to the sale of Shares) or on
the ground that the registration statement of the Trust under the 1933 Act,
including all amendments thereto (the "Registration Statement"), or Prospectus
or previous prospectus or Statement of Additional Information or previous
statement of additional information, with respect to such Shares, includes or
included an untrue statement of a material fact or omits or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, if and only if any such act, statement or
omission was made in reliance upon information furnished by the Distributor to
the Trust; or (ii) which may be incurred or arise by reason of the Distributor
acting as agent of the Trust or any Series; PROVIDED, HOWEVER, that in no case
(a) is the indemnity of the Distributor in favor of any Indemnified Party to be
deemed to protect any such Indemnified Party against liability to which such
Indemnified Party would otherwise be subject by reason of his or its willful
misfeasance, bad faith or gross negligence in the performance of its or his
duties or by reason of its or his reckless disregard of its or his obligations
and duties under this Agreement or (b) is the Distributor to be liable under its
indemnity agreement contained in this Section 4 with respect to any Claim made
against any Indemnified Party unless such Indemnified Party shall have notified
the Distributor in writing within 10 calendar days after the summons or other
first legal process giving information of the nature of the Claim shall have
been served upon such Indemnified Party (or after such Indemnified Party shall
have received notice of such service on any designated agent), but failure to
notify the Distributor of any such Claim shall not relieve it from any liability
which it may have to any Indemnified Party otherwise than on account of its
indemnity agreement contained in this Section 4. The Distributor shall be
entitled to participate, at its own expense, in the defense, or, if it so
elects, to assume the defense, of any suit brought to enforce any such Claim,
and, if the Distributor elects to assume the defense, such defense shall be
conducted by counsel chosen by it and satisfactory to each Indemnified Party. In
the event
that the Distributor elects to assume the defense of any such suit and retain
such counsel, each Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it but, in case the Distributor does not elect to
assume the defense of any such suit, it shall reimburse the Indemnified Parties
for the reasonable fees and expenses of any counsel retained by them. Except
with the prior written consent of the Distributor, no Indemnified Party shall
confess any Claim or make any compromise in any case in which the Distributor
will be asked to indemnify such Indemnified Party. The Distributor agrees
promptly to notify the Trust of the commencement of any litigation or proceeding
against it in connection with the issuance and sale of any of the Shares. The
indemnity provisions of this Agreement shall survive the termination of this
Agreement with respect to events occurring prior to such termination.
Neither the Distributor nor any dealer nor any other person is
authorized to give any information or to make any representation on behalf of
the Trust in connection with the sale of Shares of any Series, other than those
contained in the Registration Statement or Prospectus or Statement of Additional
Information relating to such Series.
In connection with sales and offers of sales of Shares, the Distributor
shall give only such information and make only such statements or
representations as are contained in the Prospectus, Statement of Additional
Information or information furnished in writing to the Distributor by the Trust,
and the Trust shall not be responsible in any way for any other information,
statements or representations given or made by the Distributor or its
representatives or agents.
5. The Trust will pay, or cause to be paid--
(i) all costs and expenses of the Trust, including, but not limited to,
fees and disbursements of its counsel, in connection with the preparation and
filing of the Registration Statement, each Prospectus and Statement of
Additional Information, and preparing and mailing to shareholders Prospectuses,
Statements of Additional Information with respect to Shares of each Series, all
costs and expenses of the holding of meetings of the Trust's Board of Trustees
and materials related thereto, statements and confirmations and periodic reports
(including the expense of setting in type the Registration Statement, Prospectus
and Statement of Additional Information or any periodic report with respect to
Shares of each Series), all costs and fees associated with registering the Trust
or its Shares under federal or state securities laws;
(ii) the cost of preparing temporary or permanent certificates
for Shares;
(iii) the cost and expenses of delivering to the Distributor at
its office in Boston, Massachusetts all Shares purchased through it as
agent hereunder;
(iv) all fees and disbursements of the Trust's transfer agent
and custodian or depository with respect to each Series, subject to the
Trust's transfer agent and custody or depository agreements;
(v) a fee to the administrator of the Trust, if any, pursuant to
an administrative services agreement; and
(vi) a fee to the investment adviser of the Trust, if any,
pursuant to an investment advisory agreement with such investment
adviser.
The Distributor shall receive no compensation for its services to the
Trust hereunder.
The Distributor agrees that with respect to the sale of Shares of each
Series, subject to the Trust's obligations under clause (iv) above, (a) after
the Prospectus and Statement of Additional Information and periodic reports with
respect to each Series have been set in type, it will bear the expense of
printing and distributing any copies thereof ordered by it which are to be used
in connection with the offering or sale of Shares of such Series to any dealer
or prospective investor and (b) it will bear the expenses of preparing, printing
and distributing any other literature used by the Distributor or furnished by it
for use by any dealer in connection with the offering of Shares of such Series
for sale to the public and any expense of sending confirmations and statements
to any dealer having a sales agreement with the Distributor.
6. If, at any time during the term of this Agreement, the Trust shall
deem it necessary or advisable in the best interests of the Trust that any
amendment of this Agreement be made in order to comply with any recommendation
or requirement of the Securities and Exchange Commission or other governmental
authority or to obtain any advantage under Massachusetts or federal tax laws, it
shall notify the Distributor of the form of amendment which it deems necessary
or advisable and the reasons therefor. If the Distributor declines to assent to
such amendment (after a reasonable time), the Trust may terminate this Agreement
forthwith by written notice to the Distributor without payment of any penalty.
If, at any time during the term of this Agreement, the Distributor requests the
Trust to make any change in its Governing Instruments or in its methods of doing
business which are necessary in order to comply with any requirement of federal
law or regulations of the Securities and Exchange Commission or of a national
securities association of which the Distributor is or may become a member,
relating to the sale of Shares, and the Trust fails (after a reasonable time) to
make any such change as requested, the Distributor may terminate this Agreement
forthwith by written notice to the Trust without payment of any penalty.
7. The Distributor agrees that it will not take any long or short
position in the Shares of any Series and that, so far as it can control the
situation, it will prevent any of its directors or officers from taking any long
or short position in the Shares of such Series, except as permitted by the
Governing Instruments.
8. This Agreement shall become effective upon its execution and shall
continue in force for a period of two years and indefinitely thereafter,
PROVIDED that such continuance is "specifically approved at least annually" by
the vote of a majority of the Trustees of the Trust who are not "interested
persons" of the Trust or of the Distributor at a meeting specifically called for
the purpose of voting on such approval, and by the Board of Trustees of the
Trust.
This Agreement may be terminated as to any Series at any time by (i)
the Trust, (a) by the vote of a majority of the Trustees of the Trust who are
not "interested persons" of the Trust or the Distributor, (b) by the vote of the
Board of Trustees of the Trust, or (c) by the "vote of a majority of the
outstanding voting securities" of the Trust, or (ii) by the Distributor, in any
case without payment of any penalty on not more than 60 days' nor less than 30
days' written notice to the other party.
This Agreement shall automatically terminate in the event of its
assignment.
9. The terms "vote of a majority of the outstanding voting securities",
"interested person", "assignment" and "specifically approved at least annually"
shall have the respective meanings specified in, and shall be construed in a
manner consistent with, the 1940 Act, SUBJECT, HOWEVER, to such exemptions as
may be granted by the Securities and Exchange Commission thereunder.
10. If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
11. Each party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof. This
Agreement shall be construed and enforced in accordance with and governed by the
laws of Massachusetts. The captions in this Agreement are included for
convenience only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written.
Pursuant to the Trust's Declaration of Trust, dated as of October 25, 1993, as
amended from time to time, the obligations of this Agreement are not binding
upon any of the Trustees or shareholders of the Trust individually, but bind
only the Trust estate of the Series.
EXCELSIOR FUNDS, for the benefit of
Excelsior Institutional Money Fund
Excelsior Institutional Treasury Money Fund
By /S/ XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxxxxx
President
SIGNATURE BROKER-DEALER SERVICES, INC.
By /S/ XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxxxxx
President
UST005B
