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EXHIBIT (m)
EXCELSIOR INSTITUTIONAL TRUST
AMENDED AND RESTATED DISTRIBUTION PLAN
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July 28, 2000
This Distribution Plan (the "Plan") was adopted by the Board of Trustees of
Excelsior Institutional Trust (the "Trust") in conformance with Rule 12b-1 under
the Investment Company Act of 1940 (the "Act") on October 25, 1996. The Plan has
been amended and restated as of July 28, 2000.
Section 1. Payments. The Trust may compensate its Distributor (or any
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other person) for services relating to the offering and sale of the Shares Class
of each of the Trust's Funds (all such shares, hereinafter called "Shares" and
all such Funds hereinafter called "Funds"). Payments by the Trust under the Plan
will be calculated daily and paid monthly at a rate or rates set from time to
time by the Trust's Board of Trustees, provided that no rate set by the Board
for any Fund may exceed the annual rate of .25% of the average daily net asset
value of Shares of such Fund. For purposes of determining the compensation
payable under the Plan, the net asset value of the outstanding Shares of the
respective Fund shall be computed in the manner specified in the Trust's
prospectuses and statements of additional information for such Shares.
Section 2. Payments Under the Plan. Payments to the Distributor under
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Section 1 of the Plan will be to compensate the Distributor for its services
which are intended to result in the sale of the Shares. Such amounts may be
spent by the Distributor on any activities or expenses primarily intended to
result in the sale of the Shares, including, without limitation: (a) direct out-
of-pocket promotional expenses incurred by the Distributor in connection with
the advertising and marketing of Shares; and (b) payments to one or more
securities dealers, financial institutions or other industry professionals and
financial intermediaries, such as but not limited to investment advisers,
accountants and estate planning firms, including affiliates of the Distributor
(severally, a "Distribution Organization") for distribution assistance. As used
herein, "direct out-of-pocket promotional expenses" include without limitation
amounts spent by the Distributor in connection with advertising via radio,
television, newspapers, magazines and otherwise; preparing, printing and mailing
sales materials, brochures and prospectuses (except for prospectuses used for
regulatory purposes or for distribution to existing shareholders); and other
out-of-pocket expenses incurred in connection with the promotion of the Shares.
Payments made by a particular Fund must be for distribution services
rendered for or on behalf of such Fund. However, joint distribution financing
with respect to Shares of the Funds (which financing may also involve other
investment portfolios or companies that are affiliated persons of such a person,
or affiliated persons of the Distributor) shall be permitted in accordance with
applicable regulations of the Securities and Exchange Commission as in effect
from time to time.
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Section 3. Reports of Distributor. So long as the Plan is in effect, the
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Distributor shall provide to the Trust's Board of Trustees, and the Trustees
shall review, at least quarterly, a written report of the amounts expended
pursuant to the Plan and the purposes for which such expenditures were made.
Section 4. Approval of Plan. The Plan will become effective immediately,
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as to any series of Shares, upon its approval by a majority of the Board of
Trustees, including a majority of the Trustees who are not "interested persons"
(as defined in the Act) of the Trust and who have no direct or indirect
financial interest in the operation of the Plan or in any agreements entered
into in connection with the Plan, pursuant to a vote cast in person at a meeting
called for the purpose of voting on the approval of the Plan.
Section 5. Continuance of Plan. The Plan shall continue in effect for
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so long as its continuance is specifically approved at least annually by the
Trust's Board of Trustees in the manner described in Section 4.
Section 6. Amendments. The Plan may be amended at any time by the Board
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of Trustees provided that (a) any amendment to increase materially the costs
which any series of Shares may bear for distribution pursuant to the Plan shall
be effective only upon approval by a vote of a majority of the outstanding
Shares of such series, and (b) any material amendments of the terms of the Plan
shall become effective only upon approval as provided in paragraph 4 hereof.
Section 7. Termination. The Plan is terminable, as to any series of
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Shares, without penalty at any time by (a) a vote of a majority of the Trustees
who are not "interested persons" (as defined in the Act) of the Trust and who
have no direct or indirect financial interest in the operation of the Plan or in
any agreements entered into in connection with the Plan, or (b) a vote of a
majority of the outstanding Shares of such series.
Section 8. Selection/Nomination of Trustees. While this Plan is in
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effect, the selection and nomination of those Trustees who are not "interested
persons" (as defined in the Act) of the Trust shall be committed to the
discretion of such non-interested Trustees.
Section 9. Miscellaneous. The captions in this Agreement are included
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for convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
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IN WITNESS WHEREOF, the Trust has executed the Plan as of July 28, 2000 on
behalf of each of the Funds.
EXCELSIOR INSTITUTIONAL TRUST
_______________________________________
Name:
Title:
Date: July 28, 2000
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DISTRIBUTION AGREEMENT
Gentlemen:
We wish to enter into this Distribution Agreement ("Agreement") with you
concerning the provision of distribution services in connection with the Shares
Class ("Shares") of each Fund offered by Excelsior Institutional Trust (the
"Trust"), of which we are the principal underwriter as defined in the Investment
Company Act of 1940 (the "Act") and the exclusive agent for the continuous
distribution of said Shares.
The terms and conditions of this Agreement are as follows:
Section 1. You agree to provide reasonable assistance in connection with
the distribution of Shares to your Clients as requested from time to time by us,
which assistance may include without limitation forwarding sales literature and
advertising provided by us for Clients, and such other similar services as we
may reasonably request to the extent you are permitted to do so under applicable
statutes, rules and regulations.
Section 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 the aforementioned
services and assistance to Clients.
Section 3. Neither you nor any of your officers, employees or agents are
authorized to make any representations concerning us or the Shares except those
contained in the Trust's applicable prospectus and statement of additional
information for the 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.
Section 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 or the
Trust 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 and the
Trust harmless from and against any and all direct or indirect liabilities or
losses resulting from requests, directions, actions or inaction's of or by you
or your officers, employees or agents regarding your responsibilities hereunder
or the purchase, redemption, transfer of registration of Shares (or orders
relating to the same) 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.
Section 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 .25% of the average daily net asset value of the
Shares beneficially owned by your Clients for whom you are the dealer of record
or holder of record (the "Clients' Shares"), which fee will be computed daily
and payable monthly. 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
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specified in the Trust's Registration Statement (as the same is in effect from
time to time) in connection with the computation of the net asset value of the
particular Shares involved for purposes of purchases and redemptions. The fee
rate stated above may be prospectively increased or decreased by us, in our sole
discretion, at any time upon notice to you. Further, we may, in our discretion
and without notice, suspend or withdraw the sale of Shares, including the sale
of Shares for the account of any Client or Clients.
Section 6. Any person authorized to direct the disposition of monies paid
or payable by us pursuant to this Agreement will provide to us and the Trust,
and the Trust's 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 designees with such information as we or
they may reasonably request (including, without limitation, periodic
certifications confirming the provision to Clients of the services 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 the Trust's 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.
Section 7. We may enter into other similar Agreements with any other
person or persons without your consent.
Section 8. By your written acceptance of this Agreement, you represent,
warrant and agree that this Agreement has been entered into pursuant to Rule
12b-1 under the Act, and is subject to the provisions of said Rule, as well as
any other applicable rules or regulations promulgated by the Securities and
Exchange Commission.
Section 9. 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 until August 1, 2001 and thereafter
will continue automatically for successive annual periods provided such
continuance is specifically approved at least annually by the Trust in the
manner described in Section 12. This Agreement is terminable with respect to any
series of Shares, without penalty, at any time by the Trust (which termination
may be by a vote of a majority of the Disinterested Trustees as defined in
Section 12 or by vote of the holders of a majority of the outstanding Shares of
such series) or by us or you upon notice to the other party hereto. This
Agreement will also terminate automatically in the event of its assignment (as
defined in the Act).
Section 10. 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 stated herein, or to such
other address as either party shall so provide the other.
Section 11. This Agreement will be construed in accordance with the laws of
the State of Delaware.
Section 12. This Agreement has been approved by vote of a majority of (i)
the Trust's Board of Trustees and (ii) those Trustees of the Trust who are not
"interested persons" (as
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defined in the Act) of the Trust and have no direct or indirect financial
interest in the operation of the Distribution Plan adopted by the Trust
regarding the provision of distribution services in connection with the Shares
or in any agreement related thereto cast in person at a meeting called for the
purpose of voting on such approval ("Disinterested Trustees").
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 us, at the following address: Edgewood Services, Inc., 5800 Corporate Drive,
Pittsburgh, Pennsylvania 15237-5829.
Very truly,
EDGEWOOD SERVICES, INC.
__________________________
Date:___________________ Name:
Title:
Accepted and Agreed to:
[Distribution Organization]
__________________________
Date: __________________ Name:
Title:
Address of Distribution __________________________
Organization __________________________
__________________________
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Schedule I to the Distribution Agreement
Name of Series - Shares Class
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Optimum Growth Fund
Value Equity Fund
International Equity Fund
High Yield Fund
EDGEWOOD SERVICES, INC.
__________________________
Date:___________________ Name:
Title:
Accepted and Agreed to:
[Distribution Organization]
__________________________
Date: __________________ Name:
Title:
Address of Distribution __________________________
Organization __________________________
__________________________
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