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EXHIBIT (k)(2)
AMENDED AND RESTATED
LEGAL SERVICES AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT, dated as of January 1, 1995, by and
between the parties as set forth in Schedule 1, attached hereto and
incorporated by reference (designated collectively hereafter as the "Funds"),
and XXX XXXXXX AMERICAN CAPITAL, INC. (formerly Van Xxxxxx Xxxxxxx Companies,
Inc.), a Delaware corporation ("Xxx Xxxxxx").
W I T N E S S E T H:
WHEREAS, each of the Funds is registered as a management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, Xxx Xxxxxx has the capability of providing certain legal services
to the Funds; and
WHEREAS, each Fund desires to utilize Xxx Xxxxxx in the provision of such
legal services; and
WHEREAS, Xxx Xxxxxx intends to increase its staff in order to accommodate
the provision of all such services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
spelled out herein, it is agreed between the parties hereto as follows:
1. Appointment of Xxx Xxxxxx. As agent, Xxx Xxxxxx shall provide each of the
Funds the legal services (the "Legal Services") as set forth in Paragraph 2 of
this Agreement. Xxx Xxxxxx accepts such appointments and agrees to furnish the
Legal Services in return for the compensation provided in Paragraph 3 of this
Agreement.
2. Legal Services to be Provided. Xxx Xxxxxx will provide to the Funds the
following legal services, including without limitation: accurate maintenance of
the Funds' Corporate Minute books and records, preparation and oversight of
each Fund's regulatory reports and other information provided to shareholders
as well as responding to day-to-day legal issues on behalf of the Funds. Xxx
Xxxxxx shall hire persons (collectively the "Legal Services Group") as needed
to provide such Legal Services and in such numbers as may be agreed from time
to time.
3. Expenses and Reimbursement. The Legal Services expenses (the "Legal
Services Expenses") for which Xxx Xxxxxx may be reimbursed are salary
and salary related benefits, including but not limited to bonuses, group
insurance and other regular wages paid to the personnel of the Legal Services
Group, as well as overhead
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and expenses related to office space and necessary equipment. The Legal
Services Expenses will be paid by Xxx Xxxxxx and reimbursed by the Funds. Xxx
Xxxxxx will tender to each Fund a monthly invoice as of the last business day
of each month which shall certify the total Legal Service Expenses expended.
Except as provided herein, Xxx Xxxxxx will receive no other compensation in
connection with Legal Services rendered in accordance with this Agreement, and
Xxx Xxxxxx will be responsible for all other expenses relating to the providing
of Legal Services.
4. Payment for Legal Services Expense Among the Funds. One half (50%) of the
Legal Services Expenses incurred under the Agreement shall be attributable
equally to each respective Fund and all other funds to whom Xxx Xxxxxx provides
Legal Services, including all other Funds for which Xxx Xxxxxx serves as
investment adviser and distributor and the Govett Funds (the Non-Participating
Funds"). Xxx Xxxxxx shall assume the costs of Legal Services for the
Non-Participating Funds for which reimbursement is not received. The remaining
one half (50%) of the Legal Services Expenses shall be in allocated (a) in the
event services are attributable to specific funds (including the
Non-Participating Funds) based on such specific time allocations; and (b) in
the event services are attributable only to types of funds (i.e. closed-end and
open-end funds), the relative amount of time spent on each type of fund and
then further allocated between funds of that type on the basis of relative net
assets at the end of the period.
5. Maintenance of Records. All records maintained by Xxx Xxxxxx in connection
with the performance of its duties under this Agreement will remain the
property of each respective Fund and will be preserved by Xxx Xxxxxx for the
periods prescribed in Section 31 of the 1940 Act and the rules thereunder or
such other applicable rules that may be adopted from time to time under the
Act. In the event of termination of the Agreement, such records will be
promptly delivered to the respective Funds. Such records may be inspected by
the respective Funds at reasonable times.
6. Liability of Xxx Xxxxxx. Xxx Xxxxxx shall not be liable to any Fund for any
action taken or thing done by it or its agents or contractors on behalf of the
Fund in carrying out the terms and provisions of the Agreement if done in good
faith and without negligence or misconduct on the part of Xxx Xxxxxx, its
agents or contractors.
7. Indemnification By Funds. Each Fund will indemnify and hold Xxx Xxxxxx
harmless from all loss, cost, damage and expense, including reasonable expenses
for legal counsel, incurred by Xxx Xxxxxx resulting from (a) any claim, demand,
action or suit in connection with Xxx Xxxxxx'x acceptance of this Agreement;
(b) an action or omission by Xxx Xxxxxx in the performance of its duties
hereunder; (c) Xxx Xxxxxx'x acting upon instructions believed by it to have
been executed by a duly authorized office of the Fund; or (d) Xxx Xxxxxx'x
acting upon information provided by the Fund in form and under policies agreed
to by Xxx Xxxxxx and the Fund. Xxx Xxxxxx shall not be entitled to such
indemnification in respect of action or omissions constituting negligence or
willful misconduct of Xxx Xxxxxx or its agents or contractors. Prior to
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confessing any claim against it which may be subject to this indemnification,
Xxx Xxxxxx shall give the Fund reasonable opportunity to defend against said
claim on its own name or in the name of Xxx Xxxxxx.
8. Indemnification By Xxx Xxxxxx. Xxx Xxxxxx will indemnify and hold harmless
each Fund from all loss, cost, damage and expense, including reasonable
expenses for legal counsel, incurred by the Fund resulting from any claim,
demand, action or suit arising out of Xxx Xxxxxx'x failure to comply with the
terms of this Agreement or which arises out of the negligence or willful
misconduct of Xxx Xxxxxx or its agents or contractors; provided, that such
negligence or misconduct is not attributable to the Funds, their agents or
contractors. Prior to confessing any claim against it which may be subject to
this indemnification, the Fund shall give Xxx Xxxxxx reasonable opportunity to
defend against said claim in its own name or in the name of such Fund.
9. Further Assurances. Each party agrees to perform such further acts and
execute such further documents as necessary to effectuate the purposes hereof.
10. Dual Interests. It is understood that some person or persons may be
directors, trustees, officers, or shareholders of both the Funds and Xxx Xxxxxx
(including Xxx Xxxxxx'x affiliates), and that the existence of any such dual
interest shall not affect the validity hereof or of any transactions hereunder
except as otherwise provided by a specific provision of applicable law.
11. Execution, Amendment and Termination. The term of this Agreement shall
begin as of the date first above written, and unless sooner terminated as
herein provided, this Agreement shall remain in effect through May 31, 1996,
and thereafter from year to year if such continuation is specifically approved
at least annually by the Board of Trustees of each Fund, including a majority
of the independent Trustees of each Fund. The Agreement may be modified or
amended from time to time by mutual agreement between the and shall likewise
reimburse Xxx Xxxxxx for its costs, expenses and disbursements payable under
this Agreement to such date. This Agreement may be amended in the future to
include as additional parties to the Agreement other investment companies for
which Xxx Xxxxxx, any subsidiary or affiliate serves as investment advisor or
distributor.
12. Assignment. Any interest of Xxx Xxxxxx under this Agreement shall not be
assigned or transferred, either voluntarily or involuntarily, by operation of
law or otherwise, without the prior written consent of the Fund. This Agreement
shall automatically and immediately terminate in the event of its assignment
without the prior written consent of the Fund.
13. Notice. Any notice under this agreement shall be in writing, addressed and
delivered or sent by registered or certified mail, postage prepaid, to the
other party at such address as such other party may designate for the receipt
of such notices. Until further notice to the other parties, it is agreed that
for this purpose the address of each
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Fund is Xxx Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000, Attention:
President and the address of Xxx Xxxxxx. for this purpose is Xxx Xxxxxxxx
Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000, Attention: General Counsel.
14. Personal Liability. As provided for in the Declaration of Trust of the
various Funds, under which the Funds are organized as unincorporated trust
under the laws of the State of Delaware and Pennsylvania, as the case may be,
the shareholders, trustees, officers, employees and other agents of the Fund
shall not personally be found by or liable for the matters set forth hereunder,
nor shall resort be had to their private property for the satisfaction of any
obligation or claim hereunder.
15. Interpretative Provisions. In connection with the operation of this
agreement, Xxx Xxxxxx and the Funds may agree from time to time on such
provisions interpretative of or in addition to the provisions of this Agreement
as may in their opinion be consistent with the general tenor of this Agreement.
16. State Law. This Agreement shall be construed and enforced in accordance
with and governed by the laws of the State of Illinois.
17. Captions. The captions in the Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction effect.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
ALL OF THE PARTIES SET FORTH IN SCHEDULE 1
ATTACHED HERETO
By: /s/ Xxxxxx X. XxXxxxxxx
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Xxxxxx X. XxXxxxxxx
President
XXX XXXXXX AMERICAN CAPITAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Executive Vice President
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SCHEDULE 1
1. XXX XXXXXX AMERICAN CAPITAL U.S. GOVERNMENT TRUST, on behalf of its
series, Xxx Xxxxxx American Capital U.S. Government Fund
2. XXX XXXXXX AMERICAN CAPITAL TAX FREE TRUST, on behalf of its series, Xxx
Xxxxxx American Capital Insured Tax Free Income Fund, Xxx Xxxxxx American
Capital Tax Free High Income Fund, Xxx Xxxxxx American Capital California
Insured Tax Free Fund, Xxx Xxxxxx American Capital Municipal Income Fund,
Xxx Xxxxxx American Capital Limited Term Municipal Income Fund, Xxx Xxxxxx
American Capital New York Tax Free Income Fund, Xxx Xxxxxx American
Capital New Jersey Tax Free Income Fund, Xxx Xxxxxx American Capital
Florida Insured Tax Free Income Fund, Xxx Xxxxxx American Capital
California Tax Free Income Fund, Xxx Xxxxxx American Capital Michigan Tax
Free Income Fund, Xxx Xxxxxx American Capital Missouri Tax Free Income
Fund and Xxx Xxxxxx American Capital Ohio Tax Free Income Fund
3. XXX XXXXXX AMERICAN CAPITAL TRUST, on behalf of its series, Xxx Xxxxxx
American Capital High Yield Fund, Xxx Xxxxxx American Capital Short-Term
Global Income Fund, Xxx Xxxxxx American Capital Strategic Income Fund and
Xxx Xxxxxx American Capital Emerging Markets Income Fund
4. XXX XXXXXX AMERICAN CAPITAL EQUITY TRUST, on behalf of its series, Xxx
Xxxxxx American Capital Utility Fund, Xxx Xxxxxx American Capital Balanced
Fund, Xxx Xxxxxx American Capital Value Fund, Xxx Xxxxxx American Capital
Growth Fund, Xxx Xxxxxx American Capital Great American Companies Fund and
Xxx Xxxxxx American Capital Prospector Fund
5. XXX XXXXXX AMERICAN CAPITAL PENNSYLVANIA TAX FREE INCOME FUND
6. XXX XXXXXX AMERICAN CAPITAL TAX FREE MONEY FUND
7. XXX XXXXXX AMERICAN CAPITAL MUNICIPAL INCOME TRUST
8. XXX XXXXXX AMERICAN CAPITAL CALIFORNIA MUNICIPAL TRUST
9. XXX XXXXXX AMERICAN CAPITAL INTERMEDIATE TERM HIGH INCOME TRUST
10. XXX XXXXXX AMERICAN CAPITAL LIMITED TERM HIGH INCOME TRUST
11. XXX XXXXXX AMERICAN CAPITAL PRIME RATE INCOME TRUST
12. XXX XXXXXX AMERICAN CAPITAL INVESTMENT GRADE MUNICIPAL TRUST
13. XXX XXXXXX AMERICAN CAPITAL MUNICIPAL TRUST
14. XXX XXXXXX AMERICAN CAPITAL CALIFORNIA QUALITY MUNICIPAL TRUST
15. XXX XXXXXX AMERICAN CAPITAL FLORIDA QUALITY MUNICIPAL TRUST
16. XXX XXXXXX AMERICAN CAPITAL NEW YORK QUALITY MUNICIPAL TRUST
17. XXX XXXXXX AMERICAN CAPITAL OHIO QUALITY MUNICIPAL TRUST
18. XXX XXXXXX AMERICAN CAPITAL PENNSYLVANIA QUALITY MUNICIPAL TRUST
19. XXX XXXXXX AMERICAN CAPITAL TRUST FOR INSURED MUNICIPALS
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20. XXX XXXXXX AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE MUNICIPALS
21. XXX XXXXXX AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE CALIFORNIA
MUNICIPALS
22. XXX XXXXXX AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE FLORIDA MUNICIPALS
23. XXX XXXXXX AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE NEW JERSEY
MUNICIPALS
24. XXX XXXXXX AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE NEW YORK
MUNICIPALS
25. XXX XXXXXX AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE PENNSYLVANIA
MUNICIPALS
26. XXX XXXXXX AMERICAN CAPITAL MUNICIPAL OPPORTUNITY TRUST
27. XXX XXXXXX AMERICAN CAPITAL ADVANTAGE MUNICIPAL INCOME TRUST
28. XXX XXXXXX AMERICAN CAPITAL ADVANTAGE PENNSYLVANIA MUNICIPAL INCOME TRUST
29. XXX XXXXXX AMERICAN CAPITAL STRATEGIC SECTOR MUNICIPAL TRUST
30. XXX XXXXXX AMERICAN CAPITAL VALUE MUNICIPAL INCOME TRUST
31. XXX XXXXXX AMERICAN CAPITAL CALIFORNIA VALUE MUNICIPAL INCOME TRUST
32. XXX XXXXXX AMERICAN CAPITAL MASSACHUSETTS VALUE MUNICIPAL INCOME TRUST
33. XXX XXXXXX AMERICAN CAPITAL NEW JERSEY VALUE MUNICIPAL INCOME TRUST
34. XXX XXXXXX AMERICAN CAPITAL NEW YORK VALUE MUNICIPAL INCOME TRUST
35. XXX XXXXXX AMERICAN CAPITAL OHIO VALUE MUNICIPAL INCOME TRUST
36. XXX XXXXXX AMERICAN CAPITAL PENNSYLVANIA VALUE MUNICIPAL INCOME TRUST
37. XXX XXXXXX AMERICAN CAPITAL MUNICIPAL OPPORTUNITY TRUST II
38. XXX XXXXXX AMERICAN CAPITAL FLORIDA MUNICIPAL OPPORTUNITY TRUST
39. XXX XXXXXX AMERICAN CAPITAL ADVANTAGE MUNICIPAL INCOME TRUST II
40. XXX XXXXXX AMERICAN CAPITAL SELECT SECTOR MUNICIPAL TRUST
41. THE EXPLORER INSTITUTIONAL TRUST, on behalf of its sub-trusts, Explorer
Institutional Active Core Fund and Explorer Institutional Limited Duration
Fund
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