Exhibit 9(i)
AMENDED AND RESTATED
AGREEMENT RELATING TO INSURANCE
THIS AMENDED AND RESTATED AGREEMENT RELATING TO INSURANCE made as of
October __, 1996 (this "AGREEMENT") by and among OLD MUTUAL SOUTH AFRICA EQUITY
TRUST, a Massachusetts trust (the "MASTER TRUST"), OLD MUTUAL EQUITY GROWTH
ASSETS SOUTH AFRICA FUND, a Massachusetts business trust (the "OMEGA FUND"), OLD
MUTUAL SOUTH AFRICA GROWTH ASSETS FUND LIMITED, a Bermuda mutual fund (the "SAGA
FUND"), and OLD MUTUAL ASSET MANAGERS (BERMUDA) LIMITED, a Bermuda company (the
"ADVISER");
W I T N E S S E T H:
WHEREAS, the Master Trust invests in a portfolio consisting primarily of
South African securities;
WHEREAS, each of the OMEGA Fund and the SAGA Fund invests substantially all
of its investable assets in the Master Trust;
WHEREAS, the Adviser acts as investment adviser to the Master Trust and
may, from time to time hereafter, act in the same capacity with respect to other
clients, including other investment companies;
WHEREAS, all the parties hereto are named insureds under an errors and
omissions liability policy (as it may be amended and/or restated from time to
time, collectively the "E&O POLICY") issued by Gulf Insurance Company, or such
other insurers as from time to time may provide the E&O Policy (the "E&O
INSURER");
WHEREAS, the Master Trust, the OMEGA Fund, and the SAGA Fund (collectively,
the "FUNDS" or the "FUND PARTIES") are named insureds under a fidelity bond (as
it may be amended and/or restated from time to time, collectively the "BOND",
and collectively with the E&O Policy, the "POLICY") issued by Gulf Insurance
Company, or such other insurers as from time to time may provide the Bond
(together with the E&O Insurer as appropriate, the "INSURER");
WHEREAS, the parties entered into that certain Agreement Relating to
Insurance dated as of November 10, 1995 (the "Original Agreement") establishing
(a) the criteria by which the premium for the Policy shall be
allocated among the parties and (b) the criteria by which claims in excess of
the applicable coverage limits of the Policy shall be allocated among the
parties; and
WHEREAS, the parties desire to amend and restate the Original Agreement as
set forth herein below:
NOW, THEREFORE, the parties do hereby amend and restate the Original
Agreement as follows:
1. ALLOCATION OF PREMIUMS.
(a) One half of the annual premium for each policy year with respect to
the E&O Policy shall be borne by the Adviser and the other half of such annual
premium shall be borne by the Master Trust.
(b) The Master Trust shall pay the annual premium for each policy year
with respect to the Bond.
(c) Promptly after the determination of the annual Policy premium for each
policy year, the Adviser shall prepare a schedule (the "ALLOCATION SCHEDULE")
setting forth in reasonable detail the proposed allocation of the premium for
such year in accordance with this Section 1. The Adviser shall promptly provide
the Allocation Schedule to the administrator of each of the Funds for review.
If within ninety (90) days of provision of the Allocation Schedule to the
administrator of each of the Funds, none of the Funds has objected to the
Allocation Schedule, the allocation of the premium set forth therein shall,
absent manifest error, be conclusive and binding among the parties.
2. ALLOCATION OF COVERAGE.
(a) The Adviser shall not with respect to any policy year collect
insurance payments under the E&O Policy (whether in respect of related or
unrelated claims) totaling more than fifty percent (50%) of the policy limit for
such policy year of the E&O Policy.
(b) In the event that the claims of loss of two or more insureds under the
E&O Policy are so related that the Insurer is entitled to assert that the claims
must be aggregated with the result that the claims exceed the applicable
coverage limits for such claims, or in the event that at any time the claims of
two or more insureds under the E&O Policy for any other reason exceed the
applicable coverage limits for such claims, the following rules for
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determining, as among such insureds, the priority of satisfaction of the claims
under the E&O Policy shall apply:
(i) All claims of the Adviser which have been duly proved and established
under the E&O Policy shall be satisfied in full subject to the limit
under Section 2(a). All claims of the Funds which have been duly
proved and established under the E&O Policy shall be satisfied in full
subject (as to not more than fifty percent (50%) of the policy limit
for the current policy year) to any established or pending claims of
the Adviser, provided that, if any such pending claim is subsequently
disallowed, any claims of the Funds subject to such pending claim
shall, if permitted under the terms of the E&O Policy, thereupon be
reinstated.
(ii) If the claims of the Funds which have been duly proved and established
under the E&O Policy exceed the coverage of the E&O Policy available
to the Funds, the insurance proceeds shall be applied to those claims,
subject to any requirements of the 1940 Act or other applicable laws
or regulations, proportionately according to the respective net asset
value of each of the Fund Parties having such claims at the end of the
calendar year next preceding the calendar year in which the action to
which such claims relate (or, if there was more than one such action,
the first thereof) was commenced.
(c) In no case shall any Fund with respect to any policy year collect
payments under the Bond (whether in respect of related or unrelated claims)
totaling more than the greater of (i) its ratable share of the coverage under
the Bond determined proportionately according to the respective net asset value
of each of the Fund Parties as of the end of the calendar year next preceding
the year in which the loss took place, and (ii) the minimum coverage required by
paragraph (d)(i) of Rule 17g-1 under the 1940 Act (or if such Fund is not
registered under the 1940 Act, the minimum coverage that would be required were
such Fund so registered). In the event that the claims of loss of two or more
Funds under the Bond are so related that the Insurer is entitled to assert that
the claims must be aggregated with the result that the claims exceed the
applicable coverage limits for such claims, or in the event that at any time the
claims of two or more Funds under the Bond for any other reason exceed the
applicable coverage limits for such claims, the following rules for determining,
as among such insureds, the priority of satisfaction of the claims under the
Bond shall apply:
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(i) FIRST, to each Fund such that it receives an amount at least equal to
the amount that it would have received had it maintained a separate
fidelity bond with the minimum coverage required by paragraph (d)(1)
of Rule 17g-1 under the 1940 Act (or, if such Fund is not registered
under the 1940 Act, the amount that would be required were such Fund
so registered); and
(ii) SECOND, subject to any requirements of the 1940 Act or other
applicable laws or regulations, on a ratable basis according to the
respective net asset value of each of the Fund Parties having such
claims as of the end of the calendar year next preceding the year in
which the loss took place.
3. RENEWAL AND TERMINATION.
(a) The Adviser shall at least thirty (30) days prior to the end of each
policy year of each of the E&O Policy and the Bond make a proposal to the Funds
regarding insurance arrangements for the next policy year with respect thereto
(including the coverage amount, the quoted premium, and the proposed Insurer).
(b) Any party to this Agreement that is party to either the E&O Policy or
the Bond may cease to participate in the E&O Policy or the Bond, as the case may
be, and accordingly cease to be bound by the terms of this Agreement with
respect thereto, with effect from the end of any policy year applicable to the
E&O Policy or the Bond, as the case may be, on the giving of written notice to
each other party to this Agreement not less than fifteen (15) days prior to the
end of such policy year. Such notice shall have no effect with respect to the
allocation of premiums or coverage payable under or in respect of insurance in
force prior to the end of such policy year.
4. PRIOR AGREEMENTS. This Agreement hereby supersedes all prior or
contemporaneous agreements among the parties hereto (or any two or more of them)
(which other agreements may include other parties) relating to the subject
matter hereof.
5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
6. AMENDMENTS. This Agreement may be amended or modified with the prior
written consent of the parties hereto.
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7. HEADINGS. The section references in this Agreement are for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement.
8. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be an original and all of which shall constitute one and the same
instrument. In proving this Agreement it shall not be necessary to submit more
than one counterpart executed by each party hereto.
9. PROTECTION OF TRUSTEES.
(a) This Agreement is executed by the Trustees of the Master Trust not
individually, but as Trustees under the Declaration of Trust of the Master Trust
dated as of September 1, 1995, and the obligations of this Agreement are not
binding upon any of such Trustees individually.
(b) This Agreement is executed by the Trustees of the OMEGA Fund not
individually, but as Trustees under the Declaration of Trust of the OMEGA Fund
dated as of September 1, 1995, and the obligations of this Agreement are not
binding upon any of such Trustees or on the shareholders of the OMEGA Fund
individually, but bind only the trust estate of the OMEGA Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as a sealed instrument by their officers hereunto duly authorized all
as of the day and year first above written.
OLD MUTUAL SOUTH AFRICA
EQUITY TRUST
By: Xxxxxxx Xxxx Xxxxxx
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Xxxxxxx Xxxx Xxxxxx
Chairman of the Board of Trustees
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OLD MUTUAL EQUITY GROWTH ASSETS
SOUTH AFRICA FUND
By: Xxxxxxx Xxxx Xxxxxx
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Xxxxxxx Xxxx Xxxxxx
Chairman of the Board of Trustees
OLD MUTUAL SOUTH AFRICA GROWTH
ASSETS FUND LIMITED
By: Xxxxxxx Xxxx Xxxxxx
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Xxxxxxx Xxxx Xxxxxx
Chairman of the Board of Directors
OLD MUTUAL ASSET MANAGERS
(BERMUDA) LIMITED
By: Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
President
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