AMENDED AND RESTATED
DISTRIBUTION CONTRACT
Distribution Contract made as of April 1, 1997, as amended and restated
on July 31, 1998, between EXCELSIOR FUNDS, a Delaware business trust having its
principal office and place of business at 00 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000-0000 (herein called the "Trust"), and EDGEWOOD SERVICES,
INC., a New York corporation having its principal office and place of business
in Pittsburgh, Pennsylvania (herein called the "Distributor").
WHEREAS, the Trust is an open-end, management investment company and is
so registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Trust desires to retain the Distributor as distributor for
the shares of beneficial interest, par value $0.00001 per share (the "Shares"),
of the series of the Trust listed on Schedule I hereto, as such Schedule may be
amended from time to time by written agreement of the parties hereto (each, a
"Series"), and the Distributor is willing to render such services;
NOW THEREFORE, in consideration of the premises and mutual covenants
set forth herein the parties hereto agree as follows:
I. DELIVERY OF DOCUMENTS
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The Trust has delivered to the Distributor copies of the following
documents and will deliver to the Distributor all future amendments and
supplements thereto, if any:
(a) The Trust's Trust Instrument and all amendments thereto (as
presently in effect and as from time to time amended, herein called the "Trust
Instrument");
(b) The Trust's By-laws (as presently in effect and as from time to
time amended, herein called the "By-laws");
(c) Votes of the Board of Trustees of the Trust authorizing the
execution and delivery of this Contract;
(d) The Trust's Registration Statement under the Securities Act of
1933, as amended (the "1933 Act"), and the 1940 Act on Form N-1A most recently
filed with the Securities and Exchange Commission (the "Commission") relating to
the Shares, and all subsequent amendments or supplements thereto (the
"Registration Statement");
(e) The Trust's Notification of Registration under the 1940 Act on Form
N-8A as filed with the Commission; and
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(f) The Trust's current Prospectus and Statement of Additional
Information of the Series (as presently in effect and as from time to time
amended and supplemented herein called collectively the "Prospectus").
In addition, the Trust agrees to timely furnish from time to time, for
use in connection with the sale of Shares, such information with respect to the
Series and Shares as the Distributor may reasonably request; and the Trust
warrants that the statements contained in any such information shall fairly show
or represent what they purport to show or represent. The Trust also agrees to
furnish the Distributor upon request with: (a) audited annual and unaudited
semi-annual statements of the Trust's books and accounts with respect to each
Series, and (b) from time to time such additional information regarding the
Series' financial condition as the Distributor may reasonably request.
Furthermore, the Trust agrees to advise the Distributor as soon as
reasonably practical:
(a) of any request by the Commission for amendments to the
Registration Statement or Prospectus then in effect;
(b) in the event of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
Prospectus then in effect or the initiation of any proceeding for that
purpose;
(c) of the happening of any event that makes untrue any
statement of a material fact made in the Registration Statement or
Prospectus then in effect or which requires the making of a change in
such Registration Statement or Prospectus in order to make the
statements therein not misleading; and
(d) of all actions of the Commission with respect to any
amendment to the Registration Statement or Prospectus which may from
time to time be filed with the Commission.
For purposes of this section, informal requests by or acts of the Staff of the
Commission shall not be deemed actions of or requests by the Commission.
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II. DISTRIBUTION
1. Appointment of Distributor. The Trust hereby appoints the
Distributor as principal distributor of the Series' Shares and the Distributor
hereby accepts such appointment and agrees to render the services and duties set
forth in this Section II and on Schedule II attached hereto, as may be
supplemented or amended from time to time by a written agreement of the parties.
2. Services and Duties.
(a) The Trust agrees to sell through the Distributor, as agent, from
time to time during the term of this Contract, Shares of the Series (whether
authorized but unissued or treasury shares, in the Trust's sole discretion) upon
the terms and at the current offering price as described in the applicable
Prospectus. The Distributor will act only in its own behalf as principal in
making agreements with selected dealers or others for the sale and redemption of
Shares, and shall sell Shares only at the offering price thereof as set forth in
the applicable Prospectus. The Distributor shall devote its best efforts to
effect the sale of Shares of each Series, but shall not be obligated to sell any
certain number of Shares.
(b) In all matters relating to the sale and redemption of Shares, the
Distributor will act in conformity with the Trust's Trust Instrument, By-laws
and Prospectus and with the instructions and directions of the Trust's Board of
Trustees and will conform to and comply with the requirements of the 1933 Act,
the 1940 Act, the regulations of the National Association of Securities Dealers,
Inc. and all other applicable Federal or state laws and regulations. In
connection with the sale of Shares, the Distributor acknowledges and agrees that
it is not authorized to provide any information or make any representation other
than as contained in the Trust's Registration Statement or Prospectus and any
sales literature specifically approved by the Trust.
(c) Unless the Trust has adopted a plan pursuant to Rule 12b-l under
the 1940 Act which provides otherwise, the Distributor will finance at its own
expense such activities as it deems reasonable and which are primarily intended
to result in the sale of shares, including but not limited to: (i) printing and
distributing to prospective investors copies of any Prospectus (including any
supplement thereto) and annual and interim reports of the Series (after such
items have been prepared and set in type by the Trust) which are used in
connection with the offering of Shares of a Series; and (ii) preparing, printing
and distributing any other literature used by the Distributor in connection with
the sale of the Shares; provided, however, that the Distributor shall not be
obligated to bear the expenses incurred by the Trust in connection with the
preparation and printing of Prospectuses used for regulatory purposes and for
distribution to existing shareholders.
(d) All Shares of the Series offered for sale by the Distributor shall
be offered for sale to the public at a price per share (the "offering price")
equal to (i) their net asset value (determined in the manner set forth in the
Trust Instrument and then-current Prospectus) plus (ii) a sales charge (if any)
which shall be the percentage of the offering price of such Shares as set forth
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in the Trust's then-current Prospectus. If a sales charge is in effect, the
Distributor shall have the right to pay a portion of the sales charge to
broker-dealers and other persons who have sold shares of the Series. Concessions
by the Distributor to broker-dealers and other persons shall be set forth in
either the selling agreements between the Distributor and such broker-dealers
and persons or, if such concessions are described in the then-current
Prospectuses, shall be as so set forth. No broker-dealer or other person who
enters into a selling agreement with the Distributor shall be authorized to act
as agent for the Trust in connection with the offering or sale of its Shares to
the public or otherwise. The Trust reserves the right to reject any order but
will not do so without reasonable cause.
(e) If any Shares sold by the Distributor under the terms of this
Contract are redeemed or repurchased by the Trust or by the Distributor as agent
or are tendered for redemption within seven business days after the date of
confirmation of the original purchase of said Shares, the Distributor shall
forfeit the amount (if any) above the net asset value received by it in respect
of such Shares, provided that the portion, if any, of such amount (if any)
re-allowed by the Distributor to broker-dealers or other persons shall be
repayable to the Trust only to the extent recovered by the Distributor from the
broker-dealer or other person concerned. The Distributor shall include in the
forms of agreement with such broker-dealers and persons a corresponding
provision for the forfeiture by them of their concession with respect to Shares
sold by them or their principals and redeemed or repurchased by the Trust or by
the Distributor as agent (or tendered for redemption) within seven business days
after the date of confirmation of such initial purchases.
3. Sales and Redemptions.
(a) The Trust shall pay all costs and expenses in connection with the
registration of the Shares under the 1933 Act, and all expenses in connection
with maintaining facilities for the issue and transfer of the Shares and for
supplying information, prices and other data to be furnished by the Trust
hereunder, and all expenses in connection with preparing, printing and
distributing any Prospectus, except as set forth in subsection 2(c) hereof.
(b) The Trust shall execute all documents, furnish all information and
otherwise take all actions which may be reasonably necessary in the discretion
of the Trust's officers in connection with the qualification of the Shares for
sale in such states as the Trust may approve, and the Trust shall pay all fees
which may be incurred in connection with such qualification. The Distributor
shall pay all expenses connected with its qualification as a dealer under state
or Federal laws and, except as otherwise specifically provided in this Contract,
all other expenses incurred by the Distributor in connection with the sale of
the Shares as contemplated in this Contract. It is understood that certain
advertising, marketing, shareholder servicing, administration and/or
distribution expenses to be incurred in connection with the Shares may be paid
as provided in any plan which may be adopted by the Trust in accordance with
Rule 12b-l under the 1940 Act.
(c) The Trust shall have the right to suspend the sale of Shares of any
Series at any time in response to conditions in the securities markets or
otherwise, and to suspend the redemption of Shares of any Series at any time
permitted by the 1940 Act or the rules of the Commission.
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(d) The Trust reserves the right to reject any order for Shares.
(e) No Shares shall be offered by either the Trust or the Distributor
under any of the provisions of this Contract and no orders for the purchase or
sale of Shares hereunder shall be accepted by the Trust if and so long as the
effectiveness of the Registration Statement shall be suspended under any of the
provisions of the 1933 Act, or if and so long as a Prospectus as required by
Section 10 of the 1933 Act is not on file with the Commission; provided,
however, that nothing contained in this sub-paragraph shall in any way restrict
or have any application to or bearing upon the Trust's obligation to repurchase
any Shares from any shareholder in accordance with the provisions of the Trust
Instrument or Prospectus.
III. LIMITATION OF LIABILITY
The Distributor shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Trust or any Series in connection
with the matters to which this Contract relates, except a loss resulting from
willful misfeasance, bad faith or gross negligence on the Distributor's part in
the performance of its duties or from reckless disregard by it of its
obligations and duties under this Contract. Any person, even though also an
officer, director, partner, employee or agent of the Distributor, who may be or
become an officer, director, employee or agent of the Trust, shall be deemed,
when rendering services to the Trust or to any Series, or acting on any business
of the Trust or of any Series (other than services or business in connection
with the Distributor's duties as distributor hereunder), to be rendering such
services to or acting solely for the Trust or a Series and not as an officer,
director, partner, employee or agent or one under the control or direction of
the Distributor even though paid by the Distributor.
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IV. INDEMNIFICATION
1. Trust Representations. The Trust represents and warrants to the
Distributor that at all times the Registration Statement and Prospectus will in
all material respects conform to the applicable requirements of the 1933 Act and
the rules and regulations thereunder and will not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation or warranty in this subsection shall apply to statements or
omissions made in reliance upon and in conformity with written information
furnished to the Trust by, or on behalf of, and with respect to, the Distributor
expressly for use in the Registration Statement or Prospectus.
2. Distributor's Representations. The Distributor represents and
warrants to the Trust that it is duly organized as a New York corporation and is
and at all times will remain duly authorized and licensed to carry out its
services as contemplated herein.
3. Trust Indemnification. The Trust will indemnify, defend and hold
harmless the Distributor, its several officers and directors, and any person who
controls the Distributor within the meaning of Section 15 of the 1933 Act, from
and against any losses, claims, damages or liabilities, joint or several, to
which any of them may become subject under the 1933 Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectus or in an application or other document executed by or
on behalf of the Trust, or arise out of, or are based upon, information
furnished by or on behalf of the Trust filed in any state in order to qualify
the Shares under the securities or blue sky laws thereof ("Blue Sky
Application") or arise out of or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Distributor, its several officers and directors, and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act, for any legal or
other expenses reasonably incurred by any of them in investigating, defending or
preparing to defend any such action, proceeding or claim; provided, however,
that the Trust shall not be liable in any case to the extent that such loss,
claim, damage or liability arises out of, or is based upon, any untrue
statement, alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Prospectus, any Blue Sky Application or any
application or other document executed by or on behalf or the Trust in reliance
upon and in conformity with written information furnished to the Trust by or on
behalf of and with respect to the Distributor specifically for inclusion
therein.
Notwithstanding the foregoing, the Trust shall not indemnify any person
pursuant to this subsection 3 unless the court or other body before which the
proceeding was brought has rendered a final decision on the merits that such
person was not liable by reason of his willful misfeasance, bad faith or gross
negligence in the performance of his duties, or his reckless disregard of
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obligations and duties, under this Contract ("disabling conduct") or, in the
absence of such a decision, a reasonable determination (based upon a review of
the facts) that such person was not liable by reason of disabling conduct has
been made by the vote of a majority of a quorum of Trustees of the Trust who are
neither "interested persons" of the Trust (as defined in the 0000 Xxx) nor
parties to the proceeding, or by an independent legal counsel for the Trust in a
written opinion.
The Trust shall advance attorneys' fees and other expenses incurred by
any person in defending any claim, demand, action or suit which is the subject
of a claim for indemnification pursuant to this subsection 3, so long as such
person shall: (i) undertake to repay all such advances unless it is ultimately
determined that he is entitled to indemnification hereunder; and (ii) provide
security for such undertaking, or the Series shall be insured against losses
arising by reason of any lawful advances, or a majority of a quorum of the
disinterested, non-party Trustees of the Trust (or an independent legal counsel
for the Trust in a written opinion) shall determine based on a review of readily
available facts (as opposed to a full trial-type inquiry) that there is reason
to believe that such person ultimately will be found entitled to indemnification
hereunder.
4. Distributor's Indemnification. The Distributor will indemnify,
defend and hold harmless the Trust, each Series, the Trust's several officers
and Trustees and any person who controls the Trust or any Series within the
meaning of Section 15 of the 1933 Act, from and against any losses, claims,
damages or liabilities, joint or several, to which any of them may become
subject under the 1933 Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings in respect hereof) arise out of, or
are based upon, any breach of its representations and warranties in subsection 2
hereof or its agreements in subsection 2 of Section II of this Contract, or
which arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
Prospectus, any Blue Sky Application or any application or other document
executed by or on behalf of the Trust, or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, which statement or omission was made in
reliance upon and in conformity with information furnished in writing to the
Trust or any of its several officers and Trustees by or on behalf of and with
respect to the Distributor specifically for inclusion therein, and will
reimburse the Trust, each Series, the Trust's several officers and Directors,
and any person who controls the Trust or any Series within the meaning of
Section 15 of the 1933 Act, for any legal or other expenses reasonably incurred
by any of them in investigating, defending or preparing to defend any such
action, proceeding or claim.
5. General Indemnity Provision. The indemnified party under the
indemnity agreement contained in subsection 3 or 4 shall notify the indemnifying
party in writing promptly after the summons or other first legal process giving
information of the nature of the claim shall have been served upon the
indemnified party (or after the indemnified party shall have received notice of
such service on any designated agent), but failure to notify the indemnifying
party of any such claim shall not relieve it from any liability under such
subsection 3 or 4 except to the extent, if at all, that it shall have been
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prejudiced by such failure or from any other liability which it may otherwise
have to the indemnified party. The indemnifying party will 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 liability, and if the
indemnifying party elects to assume the defense, such defense shall be conducted
by counsel chosen by it and reasonably satisfactory to the indemnified party. In
the event the indemnifying party elects to assume the defense of any such suit
and retain such counsel, the indemnified party shall bear the fees and expenses
of any additional counsel retained by the indemnified party. If the indemnifying
party does not elect to assume the defense of any such suit, or if the
indemnified party reasonably does not approve of counsel chosen by the
indemnifying party, the indemnifying party will reimburse the indemnified party,
its officers and directors/trustees, or the controlling person or persons named
as defendant or defendants in such suit, for the reasonable fees and expenses of
any counsel retained by the indemnified party or them. The indemnifying party
shall not be liable for any settlement of any such claim of action effected
without its written consent.
6. Successors. The indemnification agreement contained in this Section
IV will inure exclusively to the parties' benefit, to the benefit of its several
officers and directors/trustees, and their respective estates, and to the
benefit of the controlling persons and their successors.
V. TERM
This Contract shall continue until July 31, 1999, and thereafter shall
continue automatically for successive annual periods ending on July 31 of each
year, provided such continuance is specifically approved at least annually by
(a) the Trust's Board of Trustees or (b) vote of a majority (as defined in the
0000 Xxx) of the Trust's outstanding voting securities, provided that in either
event its continuance also is approved by a majority of the Trust's Trustees who
are not "interested persons" (as defined in the 0000 Xxx) of any party to this
Contract, cast in person at a meeting called for the purpose of voting on such
approval. This Contract is terminable without penalty, on 45 days' written
notice to the Distributor, by vote of a majority of the Trust's outstanding
voting securities or, as to each Series, by the Trust's Board of Trustees or, on
90 days' written notice to the Trust, by the Distributor. This Contract will
automatically terminate, as to the relevant Series, in the event of its
assignment (as defined in the 1940 Act).
VI. MISCELLANEOUS
1. Amendments. No provision of this Contract may be changed, waived,
discharged or terminated except by an instrument in writing signed by the party
against which all enforcement of the change, waiver, discharge or termination is
sought. This Contract may be executed in one or more counterparts and all such
counterparts will constitute one and the same instrument.
2. Construction. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
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provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. Subject to the provisions of Section IV hereof, this Contract shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and shall be governed by Massachusetts law; provided,
however, that nothing herein shall be construed in a manner inconsistent with
the 1940 Act or any rule or regulation thereunder.
3. Notice. Any notice or other instrument in writing, authorized or
required by this Contract to be given to the Trust shall be sufficiently given
if addressed to the Trust and mailed or delivered to it at its office at the
address first above written, or at such other place as the Trust may from time
to time designate in writing. Any notice or other instrument in writing,
authorized or required by this Contract to be given to the Distributor shall be
sufficiently given if addressed to the Distributor and mailed or delivered to it
at its office at the address written below, or at such other place as the
Distributor may from time to time designate in writing.
4. Limitation of Liability. This Contract has been executed by the
undersigned officer of the Trust not individually but solely as such officer.
Pursuant to the Trust Instrument, all persons contracting with or having any
claim against the Trust or a particular Series shall look only to the assets of
the Trust or such Series for payment under such contract or claim, and neither
the Trustees of the Trust nor any of the Trust's officers, employees or agents,
whether past, present or future, shall be personally liable therefor. To the
extent any of the obligations of the Trust hereunder relate to or are allocated
to any particular Series in accordance with the Trust Instrument, such
obligations shall be enforceable against the assets of such Series only, and not
against the assets of the Trust generally or of any other series of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
executed by their officers designated below as of the day and year first above
written.
EXCELSIOR FUNDS
By: /s/ Xxxxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President
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EDGEWOOD SERVICES, INC.
Clearing Operations
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
----------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Treasurer
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SCHEDULE I
Name of Series
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Excelsior Institutional Money Fund
Dated: July 31, 1998
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SCHEDULE II
The following provisions are hereby incorporated and made part of the
Distribution Contract dated as of April 1, 1997, as amended and restated on July
31, 1998, between Excelsior Funds and Edgewood Services, Inc.
Pursuant to Section II, subsection 1 of the Contract, the Distributor
agrees to provide facilities, equipment, and personnel to carry out the
following additional services to the Trust:
(a) perform a due diligence review of reports required by the
Commission and notices to shareholders of record and the Commission
including, without limitation, Semi-Annual and Annual Reports to
Shareholders, Semi-Annual Reports on Form N-SAR, Proxy Statements and
share registration notices under the Securities Act of 1933;
(b) review the Trust's Registration Statement on Form N-1A or
any replacement therefor;
(c) review and file with NASD all sales literature
(advertisements, brochures and shareholder communications) for each of
the Series and any class of Shares thereof;
(d) prepare distributor's reports, if any, to the Trust's
Board of Trustees;
(e) perform internal audit examinations in accordance with the
Trust Instrument;
(f) consult with the Trust and the Trust's Board of Trustees,
as appropriate, on matters concerning the distribution of the Shares;
and
(g) consult with the Trust and its agents regarding the
jurisdictions in which the Shares shall be registered or qualified for
sale and, in connection therewith, review and monitor the actions of
the Trust and its agents in maintaining the registration or
qualification of Shares for sale under the securities laws of any
state. Payment of share registration fees and any fees for qualifying
or continuing the qualification of the Trust or any of its Series as a
dealer or broker, if applicable, shall be made by the Trust.
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Witness the due execution hereof as of the 31st day of July, 1998.
EXCELSIOR FUNDS
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President
EDGEWOOD SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Treasurer
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