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EXHIBIT (6)(a)
DISTRIBUTION AND SERVICE AGREEMENT
THIS DISTRIBUTION AND SERVICE AGREEMENT dated as of May 31, 1997 (the
"Agreement") by and between XXX XXXXXX AMERICAN CAPITAL TAX-EXEMPT TRUST, a
Delaware business trust (the "Trust"), on behalf of its series, HIGH YIELD
MUNICIPAL FUND (the "Fund"), and XXX XXXXXX AMERICAN CAPITAL DISTRIBUTORS, INC.,
a Delaware corporation (the "Distributor").
1. (a) Appointment of Distributor. The Fund appoints the Distributor as a
principal underwriter and exclusive distributor of each class of its shares of
beneficial interest (the "Shares") offered for sale from time to time pursuant
to the then current prospectus of the Fund, subject to different combinations of
front-end sales charges, distribution fees, service fees and contingent deferred
sales charges. Classes of shares, if any, subject to a front-end sales charge
and a distribution and/or service fee are referred to herein as "FESC Classes"
and the Shares of such classes are referred to herein as "FESC Shares." Classes
of shares, if any, subject to a contingent-deferred sales charge and a
distribution and/or a service fee are referred to herein as "CDSC Classes" and
Shares of such classes are referred to herein as "CDSC Shares." Classes of
shares, if any, subject to a front-end sales charge, a contingent-deferred sales
charge and a distribution and/or service fee are referred to herein as
"Combination Classes" and Shares of such class are referred to herein as
"Combination Shares." The Fund reserves the right to refuse at any time or times
to sell Shares hereunder for any reason deemed adequate by the Board of Trustees
of the Fund.
(b) Best Efforts. The Distributor shall use its best efforts to sell,
through its organization and through other dealers and agents, the Shares which
the Distributor has the right to purchase under Section 2 hereof, but the
Distributor does not undertake to sell any specific number of Shares. Without
the prior approval of the Board of Trustees, the Distributor shall not, directly
or indirectly, distribute, sell or market, through its organization or other
brokers, dealers or agents, shares of any investment companies unless the Board
of Trustees of the Fund determines that such companies do not compete, or
potentially compete, with the Fund.
(c) Positions in the Shares. The Distributor agrees that it will not
take any long or short positions in the Shares, except for long positions in
those Shares purchased by the Distributor in accordance with any systematic
sales plan described in the then current Prospectus of the Fund and except as
permitted by Section 2 hereof, and that so far as it can control the situation,
it will prevent any of its trustees, officers or shareholders from taking any
long or short positions in the Shares, except for legitimate investment
purposes.
(d) Essential Personnel. The Distributor and the Fund agree that the
retention of (i) the chief executive officer, president, treasurer and secretary
of the Distributor, and (ii) each director, officer and employee of the
Distributor or any of its affiliates (as defined in the Investment Company Act
of 1940, as amended (the "1940 Act")) who serves as an officer of the Fund (each
person referred to in (i) or (ii) hereinafter being referred to as an "Essential
Person "), in his or her curr capacities, is in the best interest of the Fund
and the Fund's shareholders. In connection with the Distributor's acceptance of
employment hereunder, the Distributor hereby agrees and covenants for itself and
on behalf of its Affiliates that neither the Distributor nor any of its
Affiliates shall replace or seek to replace any Essential Person or cause to be
replaced any Essential Person, in each case without first consulting with the
Board of Trustees of the Fund in a timely manner. In addition, neither the
Distributor nor any Affiliate of the Distributor shall change or seek to change
or cause to be changed, in any material respect, the duties and responsibilities
of any Essential Person, in each case without first consulting with the Board of
Trustees of the Fund in a timely manner.
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2. Sale of Shares to Distributor. The Fund hereby grants to the
Distributor the exclusive right, except as herein otherwise provided, to
purchase Shares directly from the Fund upon the terms herein set forth.
Such exclusive right hereby granted shall not apply to Shares issued or
transferred or sold at net asset value: (a) in connection with the merger
or consolidation of the Fund with any other investment company or the
acquisition by the Fund of all or substantially all of the assets of or the
outstanding Shares of any investment company; (b) in connection with a pro
rata distribution directly to the holders of Shares in the nature of a
stock dividend or stock split or in connection with any other
recapitalization approved by the Board of Trustees; (c) upon the exercise
of purchase or subscription rights granted to the holders of Shares on a
pro rata basis; (d) in connection with the automatic reinvestment of
dividends and distributions from the Fund; or (e) in connection with the
issue and sale of Shares to trustees, officers and employees of the Fund,
to directors, officers and employees of the investment adviser of the Fund
or any principal underwriter (including the Distributor) of the Fund, to
retirees of the Distributor that purchased shares of any mutual fund
distributed by the Distributor prior to retirement, to directors, officers
and employees of Xxx Xxxxxx American Capital, Inc. (the parent company of
the Distributor), VK/AC Holding, Inc. (the parent company of The Xxx Xxxxxx
American Capital, Inc.), Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co. (the
parent company of VK/AC Holding, Inc.) and to the subsidiaries of Xxx
Xxxxxx American Capital, Inc.; (f) to any trust, pension, profit-sharing or
other benefit plan for any of the aforesaid persons; and (g) to any group
of persons as permitted by Rule 22d-1 under the 1940 Act approved from time
to time by the Board of Trustees and set forth in the then current
Prospectus of the Fund.
The Distributor shall have the right to buy from the Fund the Shares
needed, but not more than the Shares needed (except for reasonable
allowances for clerical errors, delays and errors of transmission and
cancellation of orders) to fill unconditional orders for Shares received by
the Distributor from dealers, agents and investors during each period when
particular net asset values and public offering prices are in effect as
provided in Section 3 hereof; and the price which the Distributor shall pay
for the Shares so purchased shall be the respective net asset value used in
determining the public offering price on which such orders were based. The
Distributor shall notify the Fund at the end of each such period, or as
soon thereafter on that business day as the orders received in such period
have been compiled, of the number of Shares of each class that the
Distributor elects to purchase hereunder.
3. (a) Public Offering Price. The public offering price per Share
shall be determined in accordance with the then current Prospectus of the
Fund. In no event shall the public offering price exceed the net asset
value per Share, plus, with respect to the FESC Shares, a front-end sales
charge not in excess of the applicable maximum sales charge permitted under
the Rules of Fair Practice of the National Association of Securities
Dealers, Inc., as in effect from time to time. The net asset value per
share for each class of Shares, respectively, shall be determined in the
manner provided in the Declaration of Trust and By-Laws of the Trust as
then amended, the Certificate of Designation with respect to the Fund, as
amended, and in accordance with the then current Prospectus of the Fund
consistent with the terms and conditions of the Fund's Multiple Class Plan
adopted by the Board of Trustees in accordance with Section 18 of the 1940
Act and Rule 18f-3 thereunder. The Fund will cause immediate notice to be
given to the Distributor of each change in net asset value as soon as it is
determined.
(b) Discounts to Dealers. Discounts to dealers purchasing FESC Shares
from the Distributor for resale and to brokers and other eligible agents making
sales of FESC Shares to investors and compensation payable from the Distributor
to dealers, brokers and other eligible agents making sales of CDSC Shares and
Combination Shares shall be set forth in the selling agreements between the
Distributor and such dealers or agents, respectively, as from time to time
amended, and, if such discounts and compensation are described in the then
current Prospectus for the Fund, shall be as so set forth. In connection with
the Distributor's employment hereunder, the Distributor hereby agrees to
distribute the Shares through brokers, dealers and other agents of Xxxx Xxxxxx
Distributors, Inc. on a "proprietary basis" substantially identical to the
distribution of shares of proprietary open-end investment companies distributed
by Xxxx Xxxxxx Distributors, Inc.
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4. Compliance with NASD Rules, SEC Orders, etc. In selling Fund
Shares, the Distributor will in all respects duly comply with all state and
federal laws relating to the sale of such securities and with all
applicable rules and regulations of all regulatory bodies, including
without limitation, the Rules of Fair Practice of the National Association
of Securities Dealers, Inc., and all applicable rules and regulations of
the Securities and Exchange Commission under the 1940 Act, and will
indemnify and save the Fund harmless from any damage or expense on account
of any unlawful act by the Distributor or its agents or employees. The
Distributor is not, however, to be responsible for the acts of other
dealers or agents, except to the extent that they shall be acting for the
Distributor or under its direction or authority. None of the Distributor,
any dealer, any agent or any other person is authorized by the Fund to give
any information or to make any representations, other than those contained
in the Registration Statement or Prospectus heretofore or hereafter filed
with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "1933 Act") (as any such Registration Statement and
Prospectus may have been or may be amended from time to time), covering the
Shares, and in any supplemental information to any such Prospectus approved
by the Fund in connection with the offer or sale of Shares. None of the
Distributor, any dealer, any broker or any other person is authorized to
act as agent for the Fund in connection with the offering or sale of Shares
to the public or otherwise. All such sales shall be made by the Distributor
as principal for its own account.
In selling Shares to investors, the Distributor will adopt and comply
with certain standards, as set forth in Exhibit III attached hereto as to
when each respective class of Shares may appropriately be sold to
particular investors. The Distributor will require every broker, dealer and
other eligible agent participating in the offering of the Shares to agree
to adopt and comply with such standards as a condition precedent to their
participation in the offering.
5. Expenses.
(a) The Fund will pay or cause to be paid:
(i) all expenses in connection with the registration of
Shares under the federal securities laws, and the Fund will
exercise its best efforts to obtain said registration and
qualification;
(ii) all expenses in connection with the printing of
any notices of shareholders' meetings, proxy and proxy
statements and enclosures therewith, as well as any other
notice or communication sent to shareholders in connection
with any meeting of the shareholders or otherwise, any
annual, semiannual or other reports or communications sent
to the shareholders, and the expenses of sending
prospectuses relating to the Shares to existing
shareholders;
(iii) all expenses of any federal or state
original-issue tax or transfer tax payable upon the
issuance, transfer or delivery of Shares from the Fund to
the Distributor; and
(iv) the cost of preparing and issuing any Share
certificates which may be issued to represent Shares.
(b) The Distributor will pay the costs and expenses of qualifying and
maintaining qualification of the Shares for sale under the securities laws
of the various states. The Distributor will also permit its officers and
employees to serve without compensation as trustees and officers of the
Fund if duly elected to such positions.
(c) The Fund shall reimburse the Distributor for out-of-pocket costs
and expenses actually incurred by it in connection with distribution of
each class of Shares respectively in accordance with and subject to the
terms of a plan (the "12b-1 Plan") adopted by the Fund pursuant to Rule
12b-1 under the 1940 Act as such 12b-1 Plan may be in effect from time to
time; provided, however, that no payments shall be due or paid to the
Distributor hereunder with respect to a class of Shares unless and
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until this Agreement shall have been approved for each such class by a
majority of the Board of Trustees of the Fund and by a majority of the
"Disinterested Trustees" (as such term is defined in such 12b-1 Plan) by vote
cast in person at a meeting called for the purpose of voting on this Agreement.
A copy of such 12b-1 Plan as in effect on the date of this Agreement is attached
as Exhibit I hereto. The Fund reserves the right to terminate such 12b-1 Plan
with respect to a class of Shares at any time, as specified in the Plan. The
persons authorized to direct the payment of funds pursuant to this Agreement and
the 12b-1 Plan shall provide to the Fund's Board of Trustees, and the Trustees
shall review, at least quarterly, a written report with respect to each class of
Shares setting forth the amounts so paid, the purposes for which such
expenditures were made for each such class of Shares, comparing the amounts paid
by such class of Shares with amounts paid by classes of shares issued by
investment companies not governed by the Board of Trustees and distributed by
the Distributor or by direct or indirect Affiliates of the Distributor and such
other information as the Board of Trustees may from time to time request.
(d) The Fund shall compensate the Distributor for providing services to,
and the maintenance of, shareholder accounts in the Fund (including prepaying
service fees to eligible brokers, dealers and financial intermediaries and
expenses incurred in connection therewith) and the Distributor may pay as agent
for and on behalf of the Fund a service fee with respect to each class of Shares
to brokers, dealers and financial intermediaries for the provision of
shareholder services and the maintena of shareholder accounts in the Fund in the
amount with respect to each class of Shares set forth from time to time in the
Fund's prospectus. The Fund shall compensate the Distributor for such expenses
in accordance with the terms of a service plan (the "Service Plan"), as such
Service Plan may be in effect from time to time; provided, however, that no
service fee payments shall be due or paid to the Distributor hereunder with
respect to a class of Shares unless and until this Agreement shall have been
approved for each such class by a majority of the Board of Trustees of the Fund
and by a majority of the Disinterested Trustees by vote cast in person at a
meeting called for the purpose of voting on this Agreement. A copy of such
Service Plan as in effect on the date of this Agreement is attached as Exhibit
II hereto. The Fund reserves the right to terminate such Service Plan with
respect to a class of Shares at any time, as specified in the Plan. The persons
authorized to direct the payment of funds pursuant to this Agreement and the
Service Plan shall provide to the Fund's Board of Trustees, and the Trustees
shall review, at least quarterly, a written report with respect to each class of
Shares setting forth the amounts paid as service fees for each such class of
Shares comparing the amounts paid as service fees by such class of Shares with
amounts paid by classes of shares issued by investment companies not governed by
the Board of Trustees and distributed by the Distributor or by direct or
indirect Affiliates of the Distributor and such other information as the Board
of Trustees may from time to time request.
6. Redemption of Shares. In connection with the Fund's redemption of its
Shares, the Fund hereby authorizes the Distributor to repurchase, upon the terms
and conditions hereinafter set forth, as the Fund's agent and for the Fund's
account, such Shares as may be offered for sale to the Fund from time to time by
holders of such Shares or their agents.
(a) Subject to and in conformity with all applicable federal and state
legislation, any applicable rules of the National Association of Securities
Dealers, Inc., and any applicable rules and regulations of the Securities
and Exchange Commission under the 1940 Act, the Distributor may accept
offers of holders of Shares to resell such Shares to the Fund on such terms
and conditions and at such prices as described and provided for in the then
current Prospectus of the Fund.
(b) The Distributor agrees to notify the Fund at such times as the
Fund may specify of the number of each class of Shares, respectively,
repurchased for the Fund's account and the time or times of such
repurchases, and the Fund shall notify the Distributor of the prices and,
in the case of a class of CDSC Shares or Combination Shares, of the
deferred sales charge as described below, if any, applicable to repurchases
of Shares of such class.
(c) The Fund shall have the right to suspend or revoke the foregoing
authorization at any time; unless otherwise stated, any such suspension or
revocation shall be effective forthwith upon receipt of notice thereof by
telegraph or by written instrument from any of the Fund's officers. In the
event that the Distributor's authorization is, by the terms of such notice,
suspended for more than twenty-four hours or until further notice, the
authorization given by this Section 6 shall not be revived except by vote
of the Board of Trustees of the Fund.
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(d) The Distributor agrees that all repurchases of Shares made by the
Distributor shall be made only as agent for the Fund's account and pursuant to
the terms and conditions herein set forth.
(e) The Fund agrees to authorize and direct its Custodian to pay, for the
Fund's account, the repurchase price (together with any applicable contingent
deferred sales charge) of any Shares so repurchased for the Fund against the
authorized transfer of book shares from an open account and against delivery of
any other documentation required by the Board of Trustees of the Fund or, in the
case of certificated Shares, against delivery of the certificates representing
such Shares in proper for transfer to the Fund.
(f) The Distributor shall receive no commissions or other compensation in
respect of any repurchases of FESC Shares for the Fund under the foregoing
authorization and appointment as agent. With respect to any repurchase of CDSC
Shares or Combination Shares, the Distributor shall receive the deferred sales
charge, if any, applicable to the respective class of Shares that have been held
for less than a specified period of time with respect to such class as set forth
from time to time in the Fund's Prospectus. The Distributor shall receive no
other commission or other compensation in respect of any repurchases of CDSC
Shares or Combination Shares for the Fund under the foregoing authorization and
appointment as agent.
(g) If any FESC Shares sold to the Distributor under the terms of this
Agreement are redeemed or repurchased by the Fund or by the Distributor as agent
or are tendered for redemption within seven business days after the date of the
Distributor's confirmation of the original purchase by the Distributor, the
Distributor shall forfeit the amount above the net asset value received by it in
respect of such Shares, provided that the portion, if any, of such amount
re-allowed by the Distributor t dealers or agents shall be repayable to the Fund
only to the extent recovered by the Distributor from the dealer or agent
concerned. The Distributor shall include in agreements with such dealers and
agents a corresponding provision for the forfeiture by them of their concession
with respect to FESC Shares purchased by them or their principals and redeemed
or repurchased by the Fund or by the Distributor as agent within seven business
days after the date of the Distributor's confirmation of such initial purchases.
7. Indemnification. The Fund agrees to indemnify and hold harmless the
Distributor and each of its trustees and officers and each person, if any, who
controls the Distributor within the meaning of Section 15 of the 1933 Act
against any loss, liability, claim, damage or expense (including the reasonable
cost of investigating or defending any alleged loss, liability, claim, damage,
or expense and reasonable counsel fees incurred in connection therewith),
arising by reason of any person acquiring any Shares, based upon the ground that
the registration statement, Prospectus, shareholder reports or other information
filed or made public by the Fund (as from time to time amended) included an
untrue statement of a material fact or omitted to state a material fact required
to be stated or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading under the 1933 Act
or any other statute or the common law. However, the Fund does not agree to
indemnify the Distributor or hold it harmless to the extent that the statement
or omission was made in reliance upon, and in conformity with, information
furnished to the Fund by or on behalf of the Distributor. In no case (i) is the
indemnity of the Fund in favor of the Distributor or any person indemnified to
be deemed to protect the Distributor or any person against any liability to the
Fund or its securityholders to which the Distributor or such person 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 and duties under this Agreement, or (ii) is the
Fund to be liable under its indemnity agreement contained in this Section with
respect to any claim made against the Distributor or any person indemnified
unless the Distributor or any such person shall have notified the Fund in
writing of the claim within a reasonable time after the summons or other first
written notification giving information of the nature of the claim shall have
been served upon the Distributor or any such person (or after the Distributor or
the person shall have received notice of service on any designated agent).
However, failure to notify the Fund of any claim shall not relieve the Fund from
any liability which it may have to the Distributor or any person against whom
such action is brought otherwise than on account of its indemnity agreement
contained in this paragraph. The Fund shall be entitled to participate at its
own expense in the defense,
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or, if it so elects, to assume the defense, of any suit brought to enforce any
claims, but if the Fund elects to assume the defense, the defense shall be
conducted by counsel chosen by it and satisfactory to the Distributor or person
or persons, defendant or defendants in the suit. In the event the Fund elects to
assume the defense of any suit and retain counsel, the Distributor, officers or
trustees or controlling person or persons, defendant or defendants in the suit,
shall bear the fees and expenses of any additional counsel retained by them. If
the Fund does not elect to assume the defense of any suit, it will reimburse the
Distributor, officers or trustees or controlling person or persons, defendant or
defendants in the suit for the reasonable fees and expenses of any counsel
retained by them. The Fund agrees to notify the Distributor promptly of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of any of the Shares.
The Distributor also covenants and agrees that it will indemnify and hold
harmless the Fund and each of its trustees and officers and each person, if any,
who controls the Fund within the meaning of Section 15 of the 1933 Act against
any loss, liability, damage, claim or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, damage, claim or expense
and reasonable counsel fees incurred in connection therewith) arising by reason
of any person acquiring any Shares, based upon the 1933 Act or any other statute
or common law, alleging any wrongful act of the Distributor or any of its
employees or alleging that the registration statement, Prospectus, shareholder
reports or other information filed or made public by the Fund (as from time to
time amended) included an untrue statement of a material fact or omitted to
state a material fact required to be stated or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, insofar as the statement or omission was made in reliance upon,
and in conformity with, information furnished to the Fund by or on behalf of the
Distributor. In no case (i) is the indemnity of the Distributor in favor of the
Fund or any person indemnified to be deemed to protect the Fund or any such
person against any liability to which the Fund or such person 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
obligation and duties under this Amended Agreement, or (ii) is the Distributor
to be liable under its indemnity agreement contained in this paragraph with
respect to any claim made against the Fund or any person indemnified unless the
Fund or person, as the case may be, shall have notified the Distributor in
writing of the claim within a reasonable time after the summons or other first
written notification giving information of the nature of the claim shall have
been served upon the Fund or person (or after the Fund or such person shall have
received notice of service on any designated agent). However, failure to notify
the Distributor of any claim shall not relieve the Distributor from any
liability which it may have to the Fund or any person against whom the action is
brought otherwise than on account of its indemnity agreement contained in this
paragraph. In the case of any notice to the Distributor, it 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 the claim, but if the Distributor
elects to assume the defense, the defense shall be conducted by counsel chosen
by it and satisfactory to the Fund, to its officers and trustees and to any
controlling person or persons, defendant or defendants in the suit. In the event
that the Distributor elects to assume the defense of any suit and retain
counsel, the Fund or controlling persons, defendants in the suit, shall bear the
fees and expenses of any additional counsel retained by them. If the Distributor
does not elect to assume the defense of any suit, it will reimburse the Fund,
officers and trustees or controlling person or persons, defendant or defendants
in the suit, for the reasonable fees and expenses of any counsel retained by
them. The Distributor agrees to notify the Fund promptly of the commencement of
any litigation or proceedings against it in connection with the issue and sale
of any of the Shares.
8. Continuation, Amendment or Termination of This Agreement. This Agreement
shall become effective on the Effective Date and thereafter shall continue in
full force and effect year to year with respect to each class of Shares so long
as such continuance is approved at least annually (i) by the Board of Trustees
of the Fund or by a vote of a majority of the outstanding voting securities of
the respective class of Shares of the Fund, and (ii) by vote of a majority of
the Trustees who are not parties to this Agreement or interested persons in any
such party (the "Independent Trustee") cast in person at a meeting called for
the purpose of voting on such approval, provided, however, that (a) this
Agreement may at any time be terminated with respect to either class of Shares
of the Fund without the payment of any penalty either by vote of a majority of
the Disinterested Trustees, or by vote of a majority of the outstanding voting
securities of the respective class of Shares of the Fund, on written notice to
the
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Distributor; (b) this Agreement shall immediately terminate in the event of its
assignment; and (c) this Agreement may be terminated by the Distributor on
ninety (90) days' written notice to the Fund. Upon termination of this Agreement
with respect to either class of Shares of the Fund, the obligations of the
parties hereunder shall cease and terminate with respect to such class of Shares
as of the date of such termination, except for any obligation to respond for a
breach of this Agreement committed prior to such termination.
This Agreement may be amended with respect to either class of Shares at any
time by mutual consent of the parties, provided that such consent on the part of
the Fund shall have been approved (i) by the Board of Trustees of the Fund, or
by a vote of the majority of the outstanding voting securities of the respective
class of Shares of the Fund, and (ii) by vote of a majority of the Independent
Trustees cast in person at a meeting called for the purpose of voting on such
amendment.
For the purpose of this section, the terms "vote of a majority of the
outstanding voting securities", "interested persons" and "assignment" shall have
the meanings defined in the 1940 Act, as amended.
9. Limited Liability of Shareholder. Notwithstanding anything to the
contrary contained in this Agreement, you acknowledge and agree that, as
provided by Section 8.1 of the Agreement and Declaration of Trust of the Trust,
this Agreement is executed by the Trustees of the Trust and/or Officers of the
Fund by them not individually but as such Trustees and/or Officers, and the
obligations of the Fund hereunder are not binding upon any of the Trustees,
Officers or Shareholders individually, but bind only the trust estate.
10. Notice. Any notice under this Agreement shall be given in writing,
addressed and delivered, or mailed postpaid, to the other party at any office of
such party or at such other address as such party shall have designated in
writing.
11. Name. In connection with its employment hereunder, the Distributor
hereby agrees and covenants not to change its name without the prior consent of
the Board of Trustees.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES HERETO SHALL BE GOVERNED BY, THE
LAW OF THE STATE OF ILLINOIS WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF
LAWS.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their officers designated below on the day and year first above written.
XXX XXXXXX AMERICAN CAPITAL TAX-EXEMPT TRUST, on behalf of
its series, HIGH YIELD MUNICIPAL FUND
By: /s/ Xxxxxx X. XxXxxxxxx
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Name: Xxxxxx X. XxXxxxxxx
Title: President
XXX XXXXXX AMERICAN CAPITAL DISTRIBUTORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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