EXHIBIT 23e. - FORM OF DISTRIBUTION AGREEMENT
NYLIM INSTITUTIONAL FUNDS
DISTRIBUTION AGREEMENT
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AGREEMENT, made as of the __ day of ___________, 2001 between NYLIM
INSTITUTIONAL FUNDS, a Delaware business trust (the "Trust"), on behalf of each
series of the Trust set forth on Schedule A annexed hereto, as the same may be
amended from time to time (each, a "Fund," and collectively, the "Funds"), and
NYLIFE DISTRIBUTORS INC., a Delaware corporation (the "Distributor").
W I T N E S S E T H :
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WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company and it
is in the interest of the Trust to offer its shares of beneficial interest (the
"Shares") for sale continuously;
WHEREAS, the shares of beneficial interest of the Trust ("Shares") are
divided into separate series, each of which has been established by resolution
of the Board of Trustees of the Trust (the "Trustees") and the Trustees may from
time to time terminate such series or establish and terminate additional series;
and
WHEREAS, the Trust and the Distributor wish to enter into an agreement with
each other with respect to the continuous offering of the Trust's Shares, to
commence after the effectiveness of its initial registration statement filed
pursuant to the Securities Act of 1933, as amended (the "1933 Act"), and the
1940 Act.
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor. The Trust hereby appoints the
Distributor its exclusive agent to sell and to arrange for the sale of the
Shares of the Trust, including both issued and treasury shares, on the terms and
for the period set forth in this Agreement, and the Distributor hereby accepts
such appointment and agrees to act hereunder.
Section 2. Services and Duties of the Distributor.
(a) The Distributor agrees to sell, as agent for the Trust, from time to
time during the term of this Agreement, the Shares (whether unissued or treasury
shares, in the Trust's sole discretion) upon the terms described in the Funds'
prospectus or prospectuses. As used in this Agreement, the term "Prospectus"
shall mean the Funds' prospectus or prospectuses and the statement or statements
of additional information included as part of the Trust's Registration
Statement, as such prospectus, prospectuses and statement of additional
information may be amended or supplemented from time to time, and the term
"Registration Statement" shall mean the Registration Statement most recently
filed from time to time by the Trust with the Securities and Exchange Commission
and effective under the 1933 Act and the 1940 Act, as such Registration
Statement is amended by any amendments thereto at the time in effect.
(b) Upon commencement of the Trust's operations, the Distributor will hold
itself available to receive orders, satisfactory to the Distributor, for the
purchase of the Shares and will accept such orders on behalf of the Trust as of
the time of receipt of such orders and will transmit such orders as are so
accepted to the Trust's transfer and dividend disbursing agent as promptly as
practicable. Purchase orders shall be deemed effective at the times and in the
manner set forth in the Prospectus.
(c) The Distributor in its discretion may purchase from the Trust as
principal and may sell Shares to such registered and qualified retail dealers as
it may select. In making agreements with such dealers, the Distributor shall act
only as principal and not as agent for the Trust.
(d) The offering price of the Shares shall be the price per share (the
"Offering Price") specified and determined as provided in the Prospectus. The
Trust shall furnish the Distributor, with all possible promptness, an advice of
each computation of net asset value.
(e) The Distributor shall not be obligated to sell any certain number of
Shares and nothing herein contained shall prevent the Distributor from entering
into like distribution arrangements with other investment companies so long as
the performance of its obligations hereunder is not impaired thereby.
(f) The Distributor is authorized on behalf of the Trust to purchase Shares
presented to it by dealers at the price determined in accordance with, and in
the manner set forth in, the Prospectus.
Section 3. Duties of the Trust
(a) The Trust agrees to sell Shares so long as it has Shares available for
sale except for such times at which the sale of its Shares has been suspended by
order of the Trustees or by order of the Securities and Exchange Commission: and
to deliver certificates (if any) for, or cause the Trust's transfer and dividend
disbursing agent (or such other agent as designated by the Trust) to issue
confirmations evidencing, such Shares registered in such names and amounts as
the Distributor has requested in writing, as promptly as practicable after
receipt by the Trust of payment therefor at the net asset value thereof and
written request of the Distributor therefor.
(b) The Trust shall keep the Distributor fully informed with regard to its
affairs and shall furnish to the Distributor copies of all information,
financial statements and other papers which the Distributor may reasonably
request for use in connection with the distribution of Shares of the Trust, and
this shall include one certified copy, upon request by the Distributor, of all
financial statements prepared by the Trust and audited by its independent
accountants and such reasonable number of copies of its most current Prospectus
and annual and interim reports as the Distributor may request and shall
cooperate fully in the efforts of the Distributor to sell and arrange for the
sale of the Trust's Shares and in the performance of the Distributor under this
Agreement.
(c) The Trust shall take, from time to time, all such steps, including
payment of the related filing fee, as may be necessary to register the Shares
under the 1933 Act and to make available for sale such number of Shares as the
Distributor may be
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expected to sell. The Trust agrees to file from time to time such amendments,
reports and other documents as may be necessary in order that there may be no
untrue statement of a material fact in a Registration Statement or Prospectus,
or necessary in order that there may be no omission to state a material fact in
the Registration Statement or Prospectus which omission would make the
statements therein misleading.
(d) The Trust shall use its best efforts to qualify and maintain the
qualification of an appropriate number of its Shares for sale under the
securities laws of such states as the Distributor and the Trust may approve,
and, if necessary or appropriate in connection therewith, to qualify and
maintain the qualification of the Trust as a broker or dealer in such states;
provided that the Trust shall not be required to amend its Certificate of Trust,
Declaration of Trust or By-Laws to comply with the laws of any state, to
maintain an office in any state, to change the terms of the offering of its
Shares in any state from the terms set forth in its Registration Statement and
Prospectus, to qualify as a foreign corporation in any state or to consent to
service of process in any state other than with respect to claims arising out of
the offering of its Shares. The Distributor shall furnish such information and
other material relating to its affairs and activities as may be required by the
Trust in connection with such qualifications.
Section 4. Expenses.
(a) The Trust shall bear all costs and expenses of the continuous offering
of its Shares in connection with: (i) fees and disbursements of its counsel and
independent accountants, (ii) the preparation, filing and printing of any
Registration Statements and/or Prospectuses required by and under the federal
securities laws, (iii) the preparation and mailing of annual and interim
reports, Prospectuses and proxy materials to shareholders, (iv) the
qualifications of the Shares for sale and of the Trust pursuant to Section 3(d)
hereof and the cost and expenses payable to each such state for continuing
qualification therein, and (v) any expenses assumed by the Funds pursuant to a
Plan of Distribution, if any, adopted in conformity with Rule 12b-1 under the
0000 Xxx.
(b) The Distributor shall bear: (i) the costs and expenses of preparing,
printing and distributing any materials not prepared by the Trust and other
materials used by the Trust in connection with its offering of Shares for sale
to the public, including the additional cost of printing copies of the
Prospectus and of annual and interim reports to shareholders, other than copies
thereof required for distribution to existing shareholders or for filing with
any federal securities authorities, (ii) any expenses of advertising incurred by
the Distributor in connection with such offering, and (iii) the expenses of
registration or qualification of the Distributor as a dealer or broker under
federal or state laws and the expenses of continuing such registration or
qualification.
Section 5. Fees. Except to the extent set forth in Section 4, the
Distributor will render all services hereunder without compensation or
reimbursement.
Section 6. Indemnification. The Trust agrees to indemnify, defend and hold
the Distributor, its officers and directors and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act, free and harmless
from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which the
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Distributor, its officers, directors or any such controlling person may incur
under the 1933 Act, or under common law or otherwise, arising out of or based
upon any alleged untrue statement of a material fact contained in the
Registration Statement or Prospectus or arising out of or based upon any alleged
omission to state a material fact required to be stated in either thereof or
necessary to make the statements in either thereof not misleading, except
insofar as such claims, demands, liabilities or expenses arise out of or are
based upon any such untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information furnished in
writing by the Distributor to the Trust for use in the Registration Statement or
Prospectus; provided, however, that this indemnity agreement, to the extent that
it might require indemnity of any person who is also an officer or Trustee of
the Trust or who controls the Trust within the meaning of Section 15 of the 1933
Act, shall not inure to the benefit of such officer, Trustee or controlling
person unless a court of competent jurisdiction shall determine, or it shall
have been determined by controlling precedent, that such result would not be
against public policy as expressed in the 1933 Act; and further provided, that
in no event shall anything contained herein be so construed as to protect the
Distributor against any liability to the Trust or to its security holders to
which the Distributor would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties, or
by reason of its reckless disregard of its obligations under this Agreement. The
Trust's agreement to indemnify the Distributor, its officers and directors and
any such controlling person as aforesaid is expressly conditioned upon the
Trust's being promptly notified of any action brought against the Distributor,
its officers or directors, or any such controlling person, such notification to
be given by letter or telegram addressed to the Trust at its principal business
office. The Trust agrees promptly to notify the Distributor of the commencement
of any litigation or proceedings against the Trust or any of its officers or
Trustees in connection with the issue and sale of the Shares of any Fund.
The Distributor agrees to indemnify, defend and hold the Trust, its
officers and Trustees and any person who controls the Trust , if any, within the
meaning of Section 15 of the 1933 Act, free and harmless from and against any
and all claims, demands, liabilities and expenses (including the cost of
investigating or defending against such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which the Trust, its Trustees or
officers or any such controlling person may incur under the 1933 Act or under
common law or otherwise, but only to the extent that such liability or expense
incurred by the Trust, its Trustees or officers or such controlling person
resulting from such claims or demands shall arise out of or be based upon any
alleged untrue statement of a material fact contained in information furnished
in writing by the Distributor to the Trust for use in the Registration Statement
or Prospectus or shall arise out of or be based upon any alleged omission to
state a material fact in connection with such information required to be stated
in the Registration Statement or Prospectus or necessary to make such
information not misleading. The Distributor's agreement to indemnify the Trust,
its Trustees and officers, and any such controlling person as aforesaid is
expressly conditioned upon the Distributor's being promptly notified of any
action brought against the Trust, its Trustees or officers or any such
controlling person, such notification being given to the Distributor at its
principal business office.
Section 7. Compliance with Securities Laws. The Trust represents that it is
registered as an open-end management investment company under the 1940 Act, and
agrees that it will comply with all of the provisions of the 1940 Act and of the
rules and regulations
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thereunder. The Trust and the Distributor each agree to comply with all of the
applicable terms and provisions of the 1940 Act, the 1933 Act and, subject to
the provisions of Section 3(d) hereof, all applicable state "Blue Sky" laws,
including but not limited to the broker-dealer registration requirements. The
Distributor agrees to comply with all of the applicable terms and provisions of
the Securities Exchange Act of 1934, as amended, including but not limited to
the broker-dealer registration requirements.
Section 8. Term of Agreement; Termination. This Agreement shall commence on
the date first set forth above. This Agreement shall continue in effect for a
period more than two years from the date hereof only so long as such continuance
is specifically approved at least annually in conformity with the requirements
of the 1940 Act.
This Agreement shall terminate automatically in the event of its assignment
(as defined by the 1940 Act). In addition, this Agreement may be terminated with
respect to the Trust or a Fund by vote of a majority of the Trustees who are not
"interested persons" (as defined in the 1940 Act), or with respect to the Trust
or a Fund by vote of a majority of the outstanding voting securities of the
Trust or the Fund, as the case may be, or by the Distributor, without penalty,
upon sixty days' written notice.
Section 9. Notice. Any notice or other communication required to be given
pursuant to this Agreement shall be deemed duly given if delivered , (1) to the
Distributor at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000; or (2) to
the Trust at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
Section 10. Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of New York.
Section 11. Use of Name. It is understood that the acronym "NYLIM" or the
name "New York Life" or any derivative thereof or logo associated with that name
is the valuable property of New York Life Insurance Company and its affiliates,
and that the Trust has the right to use such name or derivative or logo only
with the approval of New York Life Insurance Company. Upon notification by New
York Life Insurance Company to cease to use such name, the Trust (to the extent
that it lawfully can) will cease to use such name or any other name indicating
that the Trust is advised or administered by or otherwise connected with New
York Life Insurance Company or any organization which shall have succeeded to
its business.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
NYLIM INSTITUTIONAL FUNDS, on behalf of each
series listed on Schedule A
By:_________________________________________
Name: Xxxxx Xxx
Title: President
NYLIFE DISTRIBUTORS INC.
By:_________________________________________
Name: Xxxxxxxxx X. Xxxxx
Title: President
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SCHEDULE A
Funds
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NYLIM Institutional Prime Cash Fund
NYLIM Institutional U.S. Government Cash Fund
NYLIM Institutional Treasury Cash Fund
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