EXHIBIT 2(e)(2)
DIVIDEND REINVESTMENT PLAN AGENCY AGREEMENT
THIS AGREEMENT is made as of the 15th day of October, 1993, by and
among each of the closed-end Xxxxxx Funds listed in Appendix A hereto (as the
same may from time to time be amended to add one or more additional closed-end
Xxxxxx Funds or to delete one or more of such Funds), each of such Funds acting
severally and not jointly with any of such other Funds, and each of such Funds
having its principal office and place of business at Xxx Xxxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (each Fund being referred to herein as the "Fund"),
Xxxxxx Fiduciary Trust Company, a Massachusetts trust company having its
principal office and place of business at Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Agent"), and The First National Bank of Boston, a
national banking association having its principal office and place of business
at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank").
WHEREAS, the Fund desires to make available to its shareholders an
opportunity to reinvest their Fund distributions in additional shares of the
Fund pursuant to the terms and conditions of a Dividend Reinvestment Plan in the
form heretofore furnished to the Bank, as the same may be amended from time to
time by the Trustees of the Fund (the "Plan");
WHEREAS, the Fund has engaged the Agent to act as its "Investor
Servicing Agent", including in such capacity acting as its transfer agent,
registrar and distribution disbursing agent;
WHEREAS, the Fund desires to employ the Bank to act as agent for
shareholders of the Fund pursuant to the terms and conditions of the Plan and
the Bank desires to accept such employment; and
WHEREAS, the Agent will provide certain administrative services in
connection with the Plan;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 Terms of Appointment; Duties of the Bank and the Agent.
1.01 Subject to the terms and conditions set forth in this
Agreement, the Fund hereby employs the Bank to act as, and the Bank agrees to
act as, Dividend Reinvestment Plan Agent for the Fund's shareholders pursuant
to the terms and conditions of the Plan.
1.02 Upon receipt of the cash distributions payable to
shareholders of the Fund participating in the Plan, the Bank will apply such
monies to the purchase of shares of the Fund in accordance with the terms and
conditions of the Plan. The Bank shall thereafter deliver shares purchased as
instructed by the Agent.
1.03 Pending purchase of shares of the Fund, the Bank
shall invest all of the cash deposited with the Bank in an interest bearing
account for the benefit of the Fund at the Bank, unless otherwise directed by
the Fund.
1.04 The Bank shall provide monthly a complete statement
of transactions in Fund shares on behalf of shareholders in the Plan and a
statement of interest earned under Section 1.03.
1.05 The Agent, pursuant to the terms and conditions of
its Investor Servicing Agreement with the Funds, shall perform all
administrative and bookkeeping services required in connection with the
operation of the Plan.
Article 2 Fees and Expenses
2.01 For the performance by the Bank pursuant to this
Agreement, the Agent agrees to pay the Bank such fees and out-of-pocket expenses
as may from time to time be specified by mutual written agreement between the
Agent and the Bank.
2.02 The Agent agrees to pay all fees and reimbursable
expenses within 30 days following the mailing of the respective billing notice.
Article 3 Representations and Warranties of the Bank
The Bank represents and warrants to the Fund that:
3.01 It is a national banking association duly organized
and existing and in good standing under the laws of the United States of
America.
3.02 It is duly qualified to carry on its business in the
United States of America.
3.03 It is empowered under applicable laws and by its
charter and by-laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken
to authorize it to enter into and perform this Agreement.
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3.05 It has and will continue to have access to the
necessary facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
3.06 It will take and accept instructions from persons
duly authorized by the Fund, as certified to the Bank from time to time.
Article 4 Representations and Warranties of the Fund and the Agent.
4.01 The Fund represents and warrants to the Bank that:
(a) It is a business trust duly organized and existing
under the laws of Massachusetts.
(b) It is empowered under applicable laws and by its
Declaration of Trust and By-Laws to enter into and perform this Agreement.
(c) All proceedings required by said Declaration of Trust
and By-Laws have been taken to authorize it to enter into and perform this
Agreement.
(d) It is a closed-end investment company registered under
the Investment Company Act of 1940.
(e) It shall make all filings required to be made by it
under federal and state securities laws.
4.02 The Agent represents and warrants to the Bank that:
(a) It is a trust company duly organized and existing and
in good standing under the laws of Massachusetts.
(b) It is empowered under applicable laws and by its
Articles of Organization and Bylaws to enter into and perform this Agreement.
(c) All proceedings required by said Articles of
Organization and Bylaws have been taken to authorize it to enter into and
perform this Agreement.
(d) It is duly registered as a transfer agent with the
Federal Deposit Insurance Corporation and the New York and American Stock
Exchanges.
(e) It shall make all filings required to be made by it
under federal and state securities laws.
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Article 5 Indemnification
5.01 The Bank shall not be responsible for, and the Fund
shall indemnify and hold the Bank harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability arising
out of or attributable to:
(a) All actions of the Bank or its agents or
subcontractors required to be taken pursuant to this Agreement, provided that
such actions are taken in good faith consistent with the exercise of reasonable
care.
(b) The Fund's refusal or failure to comply with the terms
of this Agreement, or which arise out of the Fund's lack of good faith,
negligence or willful misconduct or which arise out of the breach of any
representation or warranty of the Fund hereunder.
(c) The reliance on or use by the Bank or its agents or
subcontractors of information, records and documents which (i) are received by
the Bank or its agents or subcontractors and furnished to it by or on behalf of
the Fund, and (ii) have been prepared and/or maintained by the Fund or any other
person or firm on behalf of the Fund. Such other person or firm shall include
any former transfer agent or former registrar, or co-transfer agent or
co-registrar.
(d) The reliance on, or the carrying out by the Bank or
its agents or subcontractors of, any instructions or requests of the Fund's
representative as certified from time to time by the Fund.
(e) The offer or sale of shares of the Fund in violation
of any requirement under the federal securities laws or regulations or the
securities laws or regulations of any state that such shares be registered in
such state or in violation of any stop order or other determination or ruling by
any federal agency or any state with respect to the offer or sale of such shares
in such state.
5.02 The Bank shall indemnify and hold the Fund and the
Agent harmless from and against any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability arising out of or attributable to
any action or failure or omission to act by the Bank as a result of the Bank's
lack of good faith or failure to exercise reasonable care.
5.03 At any time the Bank may apply to any officer of the
Fund or the Agent for instructions, and may consult with legal counsel with
respect to any matter arising in connection with the services to be performed by
the Bank under this Agreement, and the Bank and its agents or subcontractors
shall not be liable and shall be indemnified by the Fund for any action in good
faith taken or omitted by it in reliance upon such instructions or upon the
written opinion of such counsel. The Bank, its agents and subcontractors shall
be protected and indemnified in acting upon any paper or document furnished by
or on behalf of the Fund or the Agent, reasonably believed to be genuine and to
have been signed by the proper person or persons, or upon any instruction,
information, data, records or documents provided to the
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Bank or its agents or subcontractors by telephone, in person, machine readable
input, telex, CRT data entry or other similar means authorized by the Fund or
the Agent, and shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the Fund or the Agent.
5.04 In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to perform or
otherwise from such causes.
5.05 Neither party to this Agreement shall be liable to
the other party for consequential damages under any provision of this Agreement
or for any act or failure to act hereunder.
5.06 In order that the indemnification provisions
contained in this Article 5 shall apply, upon the assertion of a claim for which
either party may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such assertion, and
shall keep the other party advised with respect to all developments concerning
such claim. The party who may be required to indemnify shall have the option to
participate with the party seeking indemnification in the defense of such claim.
The party seeking indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be required to indemnify it
except with the other party's prior written consent.
Article 6 Covenants of the Fund, the Agent and the Bank
6.01 The Fund and the Agent shall promptly furnish to the
Bank the following:
(a) A certified copy of the resolution of the Board of
Trustees of the Fund authorizing the employment of the Bank and the execution
and delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the
Fund and a copy of the Articles of Organization and Bylaws of the Agent and all
amendments thereto.
6.02 The Bank and the Agent shall keep records relating to
the services to be performed hereunder, in the form and manner as they may deem
advisable. To the extent required by Section 31 of the Investment Company Act of
1940, as amended, and the Rules thereunder, the Bank and the Agent agree that
all such records prepared or maintained by the Bank relating to the services to
be performed by the Bank hereunder are the property of the Fund and will be
preserved, maintained and made available in accordance with such Section and
Rules, and will be surrendered promptly to the Fund on and in accordance with
its request.
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6.03 The Bank, the Agent and the Fund agree that all
books, records, information and data pertaining to the business of the other
party which are exchanged or received pursuant to the negotiation or the
carrying out of this Agreement shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be required by law.
6.04 In case of any requests or demands for the inspection
of the records of the Fund or the Agent, the Bank will endeavor to notify the
Fund or the Agent and to secure instructions from an authorized officer of the
Fund or the Agent as to such inspection. The Bank reserves the right, however,
to exhibit such records to any person whenever it is advised by its counsel that
it may be held liable for the failure to exhibit such records to such person.
6.05 The Agent agrees to notify the Bank immediately of
any declaration of dividends by the Fund.
Article 7 Effective Date; Termination of Agreement
7.01 This Agreement shall take effect on October 15, 1993.
7.02 This Agreement may be terminated thereafter by either
the Fund or the Bank upon sixty (60) days written notice to the other.
7.03 Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the Agent. Additionally, the Bank reserves the right to charge the
Agent for any other reasonable expenses associated with such termination.
Article 8 Assignment
8.01 Neither this Agreement nor any rights or obligations
hereunder may be assigned by any party without the written consent of the other
parties.
8.02 This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and assigns.
Article 9 Amendment
9.01 This Agreement may be amended or modified by a
written agreement executed by all parties.
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Article 10 Massachusetts Law to Apply
10.01 This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
Article 11 Merger of Agreement
11.01 This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject hereof whether oral or written.
Article 12 Declaration of Trust
12.01 A copy of the Agreement and Declaration of Trust of
the Fund is on file with the Secretary of State of The Commonwealth of
Massachusetts, and notice is hereby given that this instrument is executed on
behalf of the Trustees of the Fund as Trustees and not individually and that the
obligations of or arising out of this instrument are not binding upon any of the
Trustees or shareholders individually but binding only upon the assets and
property of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their names and on their behalf by and through their
duly authorized officers, as of the day and year first above written.
THE XXXXXX FUNDS LISTED ON APPENDIX A
/s/Xxxxxxx X. Xxxxxx
BY: ---------------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President
XXXXXX FIDUCIARY TRUST COMPANY
/s/ Xxxxxx X. Xxxxx
BY: -----------------------------------
Xxxxxx X. Xxxxx
President
THE FIRST NATIONAL BANK OF BOSTON
/s/ Xxxxxx Chanbonnier
BY: -------------------------------------
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Appendix A
List of Closed-End Xxxxxx Funds Executing
Dividend Reinvestment Plan Agency Agreement
dated as of Xxxxx 00, 0000
Xxxxxx High Income Convertible and Bond Fund
Xxxxxx Master Income Trust
Xxxxxx Premier Income Trust
Xxxxxx Master Intermediate Income Trust
Xxxxxx Intermediate Government Income Trust
Xxxxxx Managed Municipal Income Trust
Xxxxxx High Yield Municipal Trust
Xxxxxx Dividend Income Fund
Xxxxxx Investment Grade Municipal Trust
Xxxxxx Tax-Free Health Care Fund
Xxxxxx Investment Grade Municipal Trust II
Xxxxxx Investment Grade Municipal Trust III
Xxxxxx California Investment Grade Municipal Trust
Xxxxxx New York Investment Grade Municipal Trust
Xxxxxx Municipal Opportunities Trust
Xxxxxx Investment Grade Intermediate Municipal Trust
Xxxxxx Managed High Yield Trust
Xxxxxx Convertible Opportunities and Income Trust
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BANK OF BOSTON
Dividend Reinvestment Plan Agent
Fee Schedule
For
XXXXXX INVESTMENTS
Annual Administrative Fee for Omnibus Account:
$3,000.00
Transactions: $12.00 Each for DTC
$10.00 Each for DWAC
Out-of Pocket Expenses as incurred including but not limited to:
Insurance, Expedited Mail, Duplicating, Fax Charges, Wires in and out,
Microfiche, etc.
Overdraft Recovery
Overdraft charge will be calculated on the actual overdraft incurred plus
Federal Reserve requirements and F.D.I.C. assessments.
Term of Contract
Three years
THE XXXXXX FUNDS LISTED ON APPENDIX A
/s/ Xxxxxxx X. Xxxxxx
BY: ____________________________
XXXXXX FIDUCIARY TRUST COMPANY
/s/ Xxxxxx X. Xxxxx
BY: _____________________________
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THE FIRST NATIONAL BANK OF BOSTON
/s/ Xxxxxx Chanbonnier
BY: _____________________________
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