EXHIBIT 8.1
FORM OF
TRUSTEE
DEFERRED COMPENSATION PLAN
AGREEMENT, made on this ____ day of ______, ____, by and
between each of the funds listed on Schedule A attached hereto as may be amended
from time to time, each a registered investment company having its principal
offices at 0 Xxxxxxxx Xxxxx, X.X. Xxx 0000, Xxxxxxxx Terrace, Illinois
60181-5555 (collectively the "Funds" or individually the "Fund"), and [Trustee
Name], residing at [Trustee Address] (the "Trustee").
WHEREAS, the Fund and the Trustee desire to enter into an
agreement whereby the Fund will provide to the Trustee a vehicle under which the
Trustee can defer receipt of trustees' fees payable by the Fund.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations set forth in this Agreement, the Fund and the Trustee hereby agree
as follows:
1. DEFINITION OF TERMS AND CONSTRUCTION
1.1 Definitions. Unless a different meaning is plainly implied
by the context, the following terms as used in this Agreement shall have the
following meanings:
(a) "Beneficiary" shall mean such person or persons
designated pursuant to Section 4.3 hereof to receive benefits after the death of
the Trustee.
(b) "Board of Trustees" shall mean the Board of
Trustees of the Fund.
(c) "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time, or any successor statute.
(d) "Compensation" shall mean the amount of trustee's
fees paid by the Fund to the Trustee during a Deferral Year prior to reduction
for Compensation Deferrals made under this Agreement.
(e) "Compensation Deferral" shall mean the amount or
amounts of the Trustee's Compensation deferred under the provisions of Section 3
of this Agreement.
(f) "Deferral Account" shall mean the account
maintained to reflect the Trustee's Compensation Deferral made pursuant to
Section 3 hereof and any
other credits or debits thereto.
(g) "Deferral Year" shall mean each calendar year
during which the Trustee makes, or is entitled to make, a Compensation Deferral
under Section 3 hereof.
(h) "Valuation Date" shall mean any day upon which
the Fund makes a valuation of the Deferral Account and shall, at a minimum, be
the last business day of each calendar quarter.
1.2 Plurals and Gender. Where appearing in this Agreement the
singular shall include the plural and the masculine shall include the feminine,
and vice versa, unless the context clearly indicates a different meaning.
1.3 Headings. The headings and subheadings in this Agreement
are inserted for the convenience of reference only and are to be ignored in any
construction of the provisions hereof.
2. PERIOD DURING WHICH COMPENSATION DEFERRALS ARE PERMITTED
2.1 Commencement of Compensation Deferrals. The Trustee may
elect, on a form provided by, and submitted to, the President of the Fund, to
commence Compensation Deferrals under Section 3 hereof for the period beginning
on the later of (i) the date this Agreement is executed or (ii) the date such
form is submitted to the President of the Fund.
2.2 Termination of Deferrals. The Trustee shall not be
eligible to make Compensation Deferrals after the earlier of the following
dates:
(a) The date of which he ceases to serve as a Trustee
of the Fund; or
(b) The effective date of the termination of this
Agreement.
3. COMPENSATION DEFERRALS
3.1 Compensation Deferral Elections.
(a) On or prior to the first day of any Deferral
Year, the Trustee may elect, on the form described in Section 2.1 hereof, to
defer the receipt of all or a portion of the Compensation for such Deferral
Year. Such writing shall set forth the amount of such Compensation Deferral (in
whole percentage amounts). Such election shall continue in effect for all
subsequent Deferral Years unless it is canceled or modified as provided below.
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(b) Compensation Deferrals shall be withheld from
each payment of Compensation by the Fund to the Trustee based upon the
percentage amount elected by the Trustee under Section 3.1(a) hereof.
(c) The Trustee may cancel or modify the amount of
his Compensation Deferrals on a prospective basis by submitting to the President
of the Fund a revised Compensation Deferral election form. Such change will be
effective as of the first day of the Deferral Year following the date such
revision is submitted to the President of the Fund.
3.2 Valuation of Deferral Account.
(a) The Fund shall establish a bookkeeping Deferral
Account to which will be credited an amount equal to the Trustee's Compensation
Deferrals under this Agreement. Compensation Deferrals shall be allocated to the
Deferral Account on the first business day following the date such Compensation
Deferrals are withheld from the Trustee's Compensation. The Deferral Account
shall be debited to reflect any distributions from such Account. Such debits
shall be debited to the Deferral Account as of the date such distributions are
made.
(b) As of each Valuation Date, income, gain and loss
equivalents (determined as if the Deferral Account is invested in the manner set
forth under Section 3.3 below) attributable to the period following the next
preceding Valuation Date shall be credited to and/or deducted from the Trustee's
Deferral Account.
3.3 Investment of Deferral Account Balance.
(a) (1) The Trustee may select, from various options
made available by the Fund, the investment media in which all or part of his
Deferral Account shall be deemed to be invested.
(2) The Trustee shall make an investment designation
on a form provided by the President of the Fund which shall remain effective
until another valid direction has been made by the Trustee as herein provided.
The Trustee may amend the investment designation as of the end of each calendar
quarter by giving written direction to the President of the Fund at least 30
days prior to the end of such calendar quarter. A timely change in a Trustee's
investment designation shall become effective on the first day of the calendar
quarter following receipt by the President of the Fund.
(3) The investment media deemed to be made available
to the Trustee, and any limitation on the maximum or minimum percentages of the
Trustee's Deferral Account that may be invested in any particular medium, shall
be the same as from time to time communicated to the Trustee by the President of
the Fund.
(b) Except as provided below, the Trustee's Deferral
Account
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shall be deemed to be invested in accordance with the investment designations,
provided such designations conform to the provisions of this Section. If:
(1) the Trustee does not furnish the
President of the Fund with written investment instructions,
(2) the written investment instructions from
the Trustee are unclear, or
(3) less than all of the Trustee's Deferral
Account is covered by such written investment instructions,
then the Trustee's Deferral Account shall be deemed to be invested in the Fund
until such time as the Trustee shall provide the President of the Fund with
complete investment instructions. Notwithstanding the above, the Board of
Directors, in its sole discretion, may disregard the Trustee's election and
determine that all Compensation Deferrals shall be deemed to be invested in the
Fund.
The Fund shall provide an annual statement to the Trustee
showing such information as is appropriate, including the aggregate amount in
the Deferral Account, as of a reasonably current date.
4. DISTRIBUTIONS FROM DEFERRAL ACCOUNT
4.1 In General. Distributions from the Trustee's Deferral Account shall
be paid in cash, in generally equal annual installments over a period of five
(5) years beginning on the date of the Trustee's retirement or disability,
except that the Board of Directors may, in its sole discretion, accelerate or,
with the consent of the Trustee, extend the distribution of such Deferral
Account. Notwithstanding the foregoing, in the event of the liquidation,
dissolution or winding up of the Fund or the distribution of all or
substantially all of the Fund's assets and property relating to one or more
series of its shares to the shareholders (for this purpose a sale, conveyance or
transfer of the Fund's assets to a trust, partnership, association or
corporation in exchange for cash, shares or other securities with the transfer
being made subject to, or with the assumption by the transferee of, the
liabilities of the Fund shall not be deemed a termination of the Fund or such a
distribution), all unpaid amounts in the Deferral Account as of the effective
date thereof shall be paid in a lump sum on such effective date.
4.2 Death Prior to Distribution of Deferral Account. Upon the
death of the Trustee prior to the commencement of the distribution of the
amounts credited to the Deferral Account, the Deferral Account shall be
distributed to the Beneficiary over a period of five (5) years beginning as soon
as practicable after the Trustee's death. In the event of the death of the
Trustee after the commencement of such distribution, but prior to the complete
distribution of the Deferral Account, the balance of the amounts in the Deferral
Account shall be distributed to the Beneficiary over the remaining period during
which such amounts were distributable to the Trustee under Section 4.1 hereof.
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In the event the Trustee survives the designated Beneficiary, the balance of
such Deferral Account shall be paid in a lump sum to such Trustee's estate.
Notwithstanding the above, the Board of Directors may, in its sole discretion,
accelerate or, with the consent of the Beneficiary or the Trustee's estate, as
applicable, extend the distribution of the Deferral Account.
4.3 Designation of Beneficiary. For purposes of Section 4.2
hereof, the Trustee's Beneficiary shall be the person or persons so designated
by the Trustee in a written instrument submitted to the President of the Fund.
In the event the Trustee fails to properly designate a Beneficiary, the balance
of such Trustee's Deferred Account shall be paid in a lump sum to such Trustee's
estate.
4.4 Payments Due Missing Persons. The Fund shall make a
reasonable effort to locate all persons entitled to benefits under this
Agreement. However, notwithstanding any provisions of this Agreement to the
contrary, if, after a period of five (5) years from the date such benefit shall
be due, any such persons entitled to benefits have not been located, their
rights under this Agreement shall stand suspended. Before this provision becomes
operative, the Fund shall send a certified letter to all such persons to their
last known address advising them that their benefits under this Agreement shall
be suspended. Any such suspended amounts shall be held by the Fund for a period
of three (3) additional years (or a total of eight (8) years from the time the
benefits first become payable) and thereafter, if unclaimed, such amounts shall
be forfeited.
5. AMENDMENTS AND TERMINATION
5.1 Amendments.
(a) The Fund and the Trustee may, by a written
instrument signed by both such parties, amend this Agreement at any time and in
any manner.
(b) The Fund reserves the right to amend, in whole or
in part, and in any manner, any or all of the provisions of this Agreement by
action of its Board of Trustees for the purposes of complying with any provision
of the Code or any other technical or legal requirements, provided that:
(1) No such amendment shall make it possible
for any part of the Trustee's Deferral Account to be used for, or
diverted to, purposes other than for the exclusive benefit of the
Trustee or the Beneficiaries, except to the extent otherwise provided
in this Agreement; and
(2) No such amendment may reduce the amount
of the Trustee's Deferral Account as of the effective date of such
amendment.
5.2 Termination. The Trustee and the Fund may, by written
instrument
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signed by both such parties, terminate this Agreement at any time. The rights of
the Trustee to the Deferral Account shall become payable as of the Valuation
Date next following the effective date of the termination of this Agreement.
6. MISCELLANEOUS.
6.1 Rights of Creditors.
(a) This Agreement is unfunded. Neither the Trustee
nor any other persons shall have any interest in any specific asset or assets of
the Fund by reason of any Deferral Account hereunder, nor any rights to receive
distribution of the Deferral Account except and as to the extent expressly
provided hereunder. The Fund shall not be required to purchase, hold or dispose
of any investments pursuant to this Agreement; however, if in order to cover its
obligations hereunder the Fund elects to purchase any investments the same shall
continue for all purposes to be a part of the general assets and property of the
Fund, subject to the claims of its general creditors and no person other than
the Fund shall by virtue of the provisions of this Agreement have any interest
in such assets other than an interest as a general creditor.
(b) The rights of the Trustee and the Beneficiaries
to the amounts held in the Deferral Account are unsecured and shall be subject
to the creditors of the Fund. With respect to the payment of amounts held under
the Deferral Account, the Trustee and the Beneficiaries have the status of
unsecured creditors of the Fund. This Agreement is executed on behalf of the
Fund by an officer of the Fund as such and not individually. Any obligation of
the Fund hereunder shall be an unsecured obligation of the Fund and not of any
other person.
6.2 Agents. The Fund may employ agents and provide for such
clerical, legal, actuarial, accounting, advisory or other services as it deems
necessary to perform its duties under this Agreement. The Fund shall bear the
cost of such services and all other expenses it incurs in connection with the
administration of this Agreement.
6.3 Liability and Indemnification. Except for its own gross
negligence, willful misconduct or willful breach of the terms of this Agreement,
the Fund shall be indemnified and held harmless by the Trustee against liability
or losses occurring by reason of any act or omission of the Fund or any other
person.
6.4 Incapacity. If the Fund shall receive evidence
satisfactory to it that the Trustee or any Beneficiary entitled to receive any
benefit under the Agreement is, at the time when such benefit becomes payable, a
minor, or is physically or mentally incompetent to receive such benefit and to
give a valid release therefor, and that another person or an institution is then
maintaining or has custody of the Trustee or Beneficiary and that no guardian,
committee or other representative of the estate of the Trustee or Beneficiary
shall have been duly appointed, the Fund may make payment of such benefit
otherwise payable to the Trustee or Beneficiary to such other person or
institution, including a custodian under the Uniform Gifts to Minors Act or
corresponding
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legislation (such custodian shall be an adult, a guardian of the minor or a
trust company), and the release of such other person or institution shall be a
valid and complete discharge for the payment of such benefit.
6.5 Cooperation of Parties. All parties to this Agreement and
any person claiming any interest hereunder agree to perform any and all acts and
execute any and all documents and papers which are necessary or desirable for
carrying out this Agreement or any of its provisions.
6.6 Governing Law. This Agreement is made and entered into in
the State of Illinois, and all matters concerning its validity, construction and
administration shall be governed by the laws of the State of Illinois.
6.7 Nonguarantee of Trusteeship. Nothing contained in this
Agreement shall be construed as a contract or guarantee of the right of the
Trustee to be, or remain as, a trustee of the Fund or to receive any, or any
particular rate of, Compensation.
6.8 Counsel. The Fund may consult with legal counsel with
respect to the meaning or construction of this Agreement or its obligations or
duties hereunder or with respect to any action or proceeding or any question of
law, and it shall be fully protected with respect to any action taken or omitted
by it in good faith pursuant to the advice of legal counsel.
6.9 Spendthrift Provision. The Trustee's and Beneficiaries'
interests in the Deferral Account may not be anticipated, sold, encumbered,
pledged, mortgaged, charged, transferred, alienated, assigned nor become subject
to execution, garnishment or attachment, and any attempt to do so by any person
shall render the Deferral Amount immediately forfeitable.
6.10 Notices. For purposes of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered personally or mailed by
United States registered or certified mail, return receipt requested, postage
prepaid, or by nationally recognized overnight delivery service providing for a
signed return receipt, addressed to the Trustee at the home address set forth in
the Fund's records and to the Fund at the address set forth on the first page of
this Agreement, provided that all notices to the Fund shall be directed to the
attention of the President of the Fund or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon receipt.
6.11 Entire Agreement. This Agreement contains the entire
understanding between the Fund and the Trustee with respect to the payment of
non-qualified elective deferred compensation by the Fund to the Trustee.
6.12 Interpretation of Agreement. Interpretations of, and
determinations related to, this Agreement made by the Fund in good faith,
including any determinations
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of the amounts of the Deferral Account, shall be conclusive and binding upon all
parties; and the Fund shall not incur any liability to the Trustee for any such
interpretation or determination so made or for any other action taken by it in
connection with this Agreement in good faith.
6.13 Successors and Assigns. This Agreement shall be binding
upon, and shall inure to the benefit of, the Fund and its successors and assigns
and to the Trustee and such Trustee's heirs, executors, administrators and
personal representatives.
6.14 Severability. In the event any one or more provisions of
this Agreement are held to be invalid or unenforceable, such illegality or
unenforceability shall not affect the validity or enforceability of the other
provisions thereof and such other provisions shall remain in full force and
effect unaffected by such invalidity or unenforceability.
6.15 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Deferred Compensation Agreement to be executed as of the day and year first
above written.
On behalf of Xxx Xxxxxx Prime
Rate Income Trust:
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
On behalf of the Trustee listed on page 1 hereto:
------------------------------
[Trustee Name]
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