22. Limitation of Liability.
The execution of this Contract has been authorized by each Fund's
Board of Trustees. This Contract is executed on behalf of each Fund or the
trustees of such Fund as trustees and not individually and the obligations of
the Fund under this Contract are not binding upon any of the Fund's trustees,
officers or shareholders individually but are binding only upon the assets and
property of the Fund.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and behalf by its duly authorized representative and
its seal to be hereunder affixed as of the 1st day of August, 1997.
ATTEST EACH OF THE FUNDS LISTED ON APPENDIX A
/s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
- ------------------------ ----------------------------------
Xxxxxx X. Xxxxxx, Vice President
and Secretary
ATTEST STATE STREET BANK AND TRUST COMPANY
/s/ Xxxxxxxx Xxxxx By: [ILLEGIBLE]
- ------------------------ ----------------------------------
Executive Vice President
23
APPENDIX A
FUND NAMES
XXX XXXXXX AMERICAN CAPITAL XXXXXXXX FUND
XXX XXXXXX AMERICAN CAPITAL CORPORATE BOND FUND
XXX XXXXXX AMERICAN CAPITAL EMERGING GROWTH FUND
XXX XXXXXX AMERICAN CAPITAL ENTERPRISE FUND
XXX XXXXXX AMERICAN CAPITAL EQUITY INCOME FUND
XXX XXXXXX AMERICAN CAPITAL GLOBAL MANAGED ASSETS FUND
XXX XXXXXX AMERICAN CAPITAL GOVERNMENT SECURITIES FUND
XXX XXXXXX AMERICAN CAPITAL GOVERNMENT TARGET FUND
XXX XXXXXX AMERICAN CAPITAL GROWTH AND INCOME FUND
XXX XXXXXX AMERICAN CAPITAL HARBOR FUND
XXX XXXXXX AMERICAN CAPITAL HIGH INCOME CORPORATE BOND FUND
XXX XXXXXX AMERICAN CAPITAL LIFE INVESTMENT TRUST
Asset Allocation Portfolio
Domestic Income Portfolio
Emerging Growth Portfolio
Enterprise Portfolio
Global Equity Portfolio
Government Portfolio
Growth and Income Portfolio
Money Market Portfolio
Xxxxxx Xxxxxxx Real Estate Securities Portfolio
XXX XXXXXX AMERICAN CAPITAL LIMITED MATURITY GOVERNMENT FUND
XXX XXXXXX AMERICAN CAPITAL PACE FUND
XXX XXXXXX AMERICAN CAPITAL REAL ESTATE SECURITIES FUND
XXX XXXXXX AMERICAN CAPITAL RESERVE FUND
XXX XXXXXX AMERICAN CAPITAL SMALL CAPITALIZATION FUND
XXX XXXXXX AMERICAN CAPITAL TAX-EXEMPT TRUST
Xxx Xxxxxx American Capital High Yield Municipal Fund
XXX XXXXXX AMERICAN CAPITAL U.S. GOVERNMENT TRUST FOR INCOME
XXX XXXXXX AMERICAN CAPITAL UTILITIES INCOME FUND
XXX XXXXXX AMERICAN CAPITAL WORLD PORTFOLIO SERIES TRUST
Xxx Xxxxxx American Capital Global Equity Fund
Xxx Xxxxxx American Capital Global Government Securities Fund
XXX XXXXXX AMERICAN CAPITAL U.S. GOVERNMENT TRUST
Xxx Xxxxxx American Capital U.S. Government Fund
XXX XXXXXX AMERICAN CAPITAL TAX FREE TRUST
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 Intermediate Term Municipal
Income Fund
Xxx Xxxxxx American Capital Florida Insured Tax Free
Income Fund
Xxx Xxxxxx American Capital New Jersey Tax Free Income Fund
Xxx Xxxxxx American Capital New York Tax Free Income Fund
XXX XXXXXX AMERICAN CAPITAL TRUST
Xxx Xxxxxx American Capital High Yield Fund
Xxx Xxxxxx American Capital Short-Term Global Income Fund
Xxx Xxxxxx American Capital Strategic Income Fund
XXX XXXXXX AMERICAN CAPITAL EQUITY TRUST
Xxx Xxxxxx American Capital Utility Fund
Xxx Xxxxxx American Capital Value Fund
Xxx Xxxxxx American Capital Great American Companies Fund
Xxx Xxxxxx American Capital Growth Fund
Xxx Xxxxxx American Capital Prospector Fund
Xxx Xxxxxx American Capital Aggressive Growth Fund
XXX XXXXXX AMERICAN CAPITAL PENNSYLVANIA TAX FREE INCOME FUND
XXX XXXXXX AMERICAN CAPITAL TAX FREE MONEY FUND
XXX XXXXXX AMERICAN CAPITAL FOREIGN SECURITIES FUND
24
THE EXPLORER INSTITUTIONAL TRUST
Explorer Institutional Active Core Fund
Explorer Institutional Limited Duration Fund
XXX XXXXXX AMERICAN CAPITAL NAVIGATOR FUNDS
Emerging Markets Equity Portfolio
Emerging Markets Fixed Income Portfolio
U.S. QUALITY FUNDS
XXX XXXXXX AMERICAN CAPITAL EXCHANGE FUND
XXX XXXXXX AMERICAN CAPITAL MUNICIPAL INCOME TRUST
XXX XXXXXX AMERICAN CAPITAL CALIFORNIA MUNICIPAL TRUST
XXX XXXXXX AMERICAN CAPITAL HIGH INCOME TRUST
XXX XXXXXX AMERICAN CAPITAL HIGH INCOME TRUST II
XXX XXXXXX AMERICAN CAPITAL INVESTMENT GRADE MUNICIPAL TRUST
XXX XXXXXX AMERICAN CAPITAL PRIME RATE INCOME TRUST
XXX XXXXXX AMERICAN CAPITAL MUNICIPAL TRUST
XXX XXXXXX AMERICAN CAPITAL CALIFORNIA QUALITY MUNICIPAL TRUST
XXX XXXXXX AMERICAN CAPITAL FLORIDA QUALITY MUNICIPAL TRUST
XXX XXXXXX AMERICAN CAPITAL NEW YORK QUALITY MUNICIPAL TRUST
XXX XXXXXX AMERICAN CAPITAL OHIO QUALITY MUNICIPAL TRUST
XXX XXXXXX AMERICAN CAPITAL PENNSYLVANIA QUALITY MUNICIPAL TRUST
XXX XXXXXX AMERICAN CAPITAL TRUST FOR INSURED MUNICIPALS
XXX XXXXXX AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE MUNICIPALS
XXX XXXXXX AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE CALIFORNIA MUNICIPALS
XXX XXXXXX AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE FLORIDA MUNICIPALS
XXX XXXXXX AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE NEW JERSEY MUNICIPALS
XXX XXXXXX AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE NEW YORK MUNICIPALS
XXX XXXXXX AMERICAN CAPITAL TRUST FOR PENNSYLVANIA MUNICIPALS
XXX XXXXXX AMERICAN CAPITAL MUNICIPAL OPPORTUNITY TRUST
XXX XXXXXX AMERICAN CAPITAL ADVANTAGE MUNICIPAL INCOME TRUST
XXX XXXXXX AMERICAN CAPITAL ADVANTAGE PENNSYLVANIA MUNICIPAL INCOME TRUST
XXX XXXXXX AMERICAN CAPITAL STRATEGIC SECTOR MUNICIPAL TRUST
XXX XXXXXX AMERICAN CAPITAL VALUE MUNICIPAL INCOME TRUST
XXX XXXXXX AMERICAN CAPITAL CALIFORNIA VALUE MUNICIPAL INCOME TRUST
XXX XXXXXX AMERICAN CAPITAL MASSACHUSETTS VALUE MUNICIPAL INCOME TRUST
XXX XXXXXX AMERICAN CAPITAL NEW JERSEY VALUE MUNICIPAL INCOME TRUST
XXX XXXXXX AMERICAN CAPITAL NEW YORK VALUE MUNICIPAL INCOME TRUST
XXX XXXXXX AMERICAN CAPITAL OHIO VALUE MUNICIPAL INCOME TRUST
XXX XXXXXX AMERICAN CAPITAL PENNSYLVANIA VALUE MUNICIPAL INCOME TRUST
XXX XXXXXX AMERICAN CAPITAL MUNICIPAL OPPORTUNITY TRUST II
XXX XXXXXX AMERICAN CAPITAL FLORIDA MUNICIPAL OPPORTUNITY TRUST
XXX XXXXXX AMERICAN CAPITAL ADVANTAGE MUNICIPAL INCOME TRUST II
XXX XXXXXX AMERICAN CAPITAL SELECT SECTOR MUNICIPAL TRUST
XXX XXXXXX AMERICAN CAPITAL BOND FUND
XXX XXXXXX AMERICAN CAPITAL CONVERTIBLE SECURITIES FUND
XXX XXXXXX AMERICAN CAPITAL INCOME TRUST
25
EXHIBIT 9.2
AMENDMENT TO CUSTODIAN CONTRACT
This Amendment to the Custodian Contract made as of May 24, 2001 by and
between each fund or series of a fund listed on Appendix A which evidences its
agreement to be bound hereby by executing a copy of this Amendment (each such
Fund is individually hereinafter referred to as the "Fund") and State Street
Bank and Trust Company (the "Custodian"). Capitalized terms used in this
Amendment without definition shall have the respective meanings given to such
terms in the Custodian Contract referred to below.
WHEREAS, the Fund and the Custodian entered into a Custodian Contract
Agreement dated as of August 1, 1997 (the "Contract");
WHEREAS, the Fund is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets, and the Fund has made each fund or series of a fund
listed on Appendix A subject to the Contract (each such series, together with
all other series subsequently established by the Fund and made subject to the
Contract in accordance with the terms thereof, shall be referred to as a
"Portfolio", and, collectively, the "Portfolios");
WHEREAS, the Fund and the Custodian desire to amend certain provisions
of the Contract to reflect revisions to Rule 17f-5 ("Rule 17f-5") and the
adoption of Rule 17f-7 ("Rule 17f-7") promulgated under the Investment Company
Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund and the Custodian desire to amend and restate certain
other provisions of the Contract relating to the custody of assets of each of
the Portfolios held outside of the United States.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter contained, the parties hereby agree to
amend the Contract, pursuant to the terms thereof, as follows:
I. Article 3 of the Contract is hereby deleted, and Articles 4 through 22
of the Contract are hereby renumbered, as of the effective date of this
Amendment, as Articles 5 through 23, respectively.
II. New Articles 3 and 4 of the Contract are hereby added, as of the
effective date of this Amendment, as set forth below.
3. PROVISIONS RELATING TO RULES 17f-5 AND 17f-7
3.1. DEFINITIONS. Capitalized terms in this Amendment shall have the following
meanings:
"Country Risk" means all factors reasonably related to the systemic risk of
holding Foreign Assets in a particular country including, but not limited to,
such country's political environment, economic and financial infrastructure
(including any Eligible Securities Depository operating in the country),
prevailing or developing custody and settlement practices, and laws and
regulations applicable to the safekeeping and recovery of Foreign Assets held in
custody in that country.
"Eligible Foreign Custodian" has the meaning set forth in section (a)(1) of Rule
17f-5, including a majority-owned or indirect subsidiary of a U.S. Bank (as
defined in Rule 17f-5), a bank holding company meeting the requirements of an
Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other appropriate
action of the U.S. Securities and Exchange Commission (the "SEC")), or a foreign
branch of a Bank (as defined in Section 2(a)(5) of the 1940 Act) meeting the
requirements of a custodian under Section 17(f) of the 1940 Act; the term does
not include any Eligible Securities Depository.
"Eligible Securities Depository" has the meaning set forth in section (b)(1) of
Rule 17f-7.
"Foreign Assets" means any of the Portfolios' investments (including foreign
currencies) for which the primary market is outside the United States and such
cash and cash equivalents as are reasonably necessary to effect the Portfolios'
transactions in such investments.
"Foreign Custody Manager" has the meaning set forth in section (a)(3) of Rule
17f-5.
3.2. THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
3.2.1 DELEGATION TO THE CUSTODIAN AS FOREIGN CUSTODY MANAGER. The Fund,
by resolution adopted by its Board of Trustees (the "Board"), hereby delegates
to the Custodian, subject to Section (b) of Rule 17f-5, the responsibilities set
forth in this Section 3.2 with respect to Foreign Assets of the Portfolios held
outside the United States, and the Custodian hereby accepts such delegation as
Foreign Custody Manager with respect to the Portfolios.
3.2.2 COUNTRIES COVERED. The Foreign Custody Manager shall be
responsible for performing the delegated responsibilities defined below only
with respect to the countries and custody arrangements for each such country
listed on Schedule A to this Contract, which list of countries may be amended
from time to time by the Fund with the agreement of the Foreign Custody Manager.
The Foreign Custody Manager shall list on Schedule A the Eligible Foreign
Custodians selected by the Foreign Custody Manager to maintain the assets of the
Portfolios, which list of Eligible Foreign Custodians may be
2
amended from time to time in the sole discretion of the Foreign Custody Manager.
The Foreign Custody Manager will provide amended versions of Schedule A in
accordance with Section 3.2.5 hereof.
Upon the receipt by the Foreign Custody Manager of Proper Instructions to open
an account or to place or maintain Foreign Assets in a country listed on
Schedule A, and the fulfillment by the Fund, on behalf of the Portfolios, of the
applicable account opening requirements for such country, the Foreign Custody
Manager shall be deemed to have been delegated by the Board on behalf of the
Portfolios responsibility as Foreign Custody Manager with respect to that
country and to have accepted such delegation. Execution of this Amendment by the
Fund shall be deemed to be a Proper Instruction to open an account, or to place
or maintain Foreign Assets, in each country listed on Schedule A in which the
Custodian has previously placed or currently maintains Foreign Assets pursuant
to the terms of the Contract. Following the receipt of Proper Instructions
directing the Foreign Custody Manager to close the account of a Portfolio with
the Eligible Foreign Custodian selected by the Foreign Custody Manager in a
designated country, the delegation by the Board on behalf of the Portfolios to
the Custodian as Foreign Custody Manager for that country shall be deemed to
have been withdrawn and the Custodian shall immediately cease to be the Foreign
Custody Manager of the Portfolios with respect to that country.
The Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon written notice to the
Fund. Thirty days (or such longer period to which the parties agree in writing)
after receipt of any such notice by the Fund, the Custodian shall have no
further responsibility in its capacity as Foreign Custody Manager to the Fund
with respect to the country as to which the Custodian's acceptance of delegation
is withdrawn.
3.2.3 SCOPE OF DELEGATED RESPONSIBILITIES:
(a) SELECTION OF ELIGIBLE FOREIGN CUSTODIANS. Subject to the
provisions of this Section 3.2, the Foreign Custody Manager may place and
maintain the Foreign Assets in the care of the Eligible Foreign Custodian
selected by the Foreign Custody Manager in each country listed on Schedule A, as
amended from time to time. In performing its delegated responsibilities as
Foreign Custody Manager to place or maintain Foreign Assets with an Eligible
Foreign Custodian, the Foreign Custody Manager shall determine that the Foreign
Assets will be subject to reasonable care, based on the standards applicable to
custodians in the country in which the Foreign Assets will be held by that
Eligible Foreign Custodian, after considering all factors relevant to the
safekeeping of such assets, including, without limitation the factors specified
in Rule 17f-5(c)(1).
(b) CONTRACTS WITH ELIGIBLE FOREIGN CUSTODIANS. The Foreign
Custody Manager shall determine that the contract governing the foreign custody
arrangements with each Eligible Foreign Custodian selected by the Foreign
Custody Manager will satisfy the requirements of Rule 17f-5(c)(2).
3
(c) MONITORING. In each case in which the Foreign Custody
Manager maintains Foreign Assets with an Eligible Foreign Custodian selected by
the Foreign Custody Manager, the Foreign Custody Manager shall establish a
system to monitor (i) the appropriateness of maintaining the Foreign Assets with
such Eligible Foreign Custodian and (ii) the contract governing the custody
arrangements established by the Foreign Custody Manager with the Eligible
Foreign Custodian. In the event the Foreign Custody Manager determines that the
custody arrangements with an Eligible Foreign Custodian it has selected are no
longer appropriate, the Foreign Custody Manager shall notify the Board in
accordance with Section 3.2.5 hereunder.
3.2.4 GUIDELINES FOR THE EXERCISE OF DELEGATED AUTHORITY. For purposes
of this Section 3.2, the Board shall be deemed to have considered and determined
to accept such Country Risk as is incurred by placing and maintaining the
Foreign Assets in each country for which the Custodian is serving as Foreign
Custody Manager of the Portfolios.
3.2.5 REPORTING REQUIREMENTS. The Foreign Custody Manager shall report
the withdrawal of the Foreign Assets from an Eligible Foreign Custodian and the
placement of such Foreign Assets with another Eligible Foreign Custodian by
providing to the Board an amended Schedule A at the end of the calendar quarter
in which an amendment to such Schedule has occurred. The Foreign Custody Manager
shall make written reports notifying the Board of any other material change in
the foreign custody arrangements of the Portfolios described in this Section 3.2
after the occurrence of the material change.
3.2.6 STANDARD OF CARE AS FOREIGN CUSTODY MANAGER OF A PORTFOLIO. In
performing the responsibilities delegated to it, the Foreign Custody Manager
agrees to exercise reasonable care, prudence and diligence such as a person
having responsibility for the safekeeping of assets of management investment
companies registered under the 1940 Act would exercise.
3.2.7 REPRESENTATIONS WITH RESPECT TO RULE 17f-5. The Foreign Custody
Manager represents to the Fund that it is a U.S. Bank as defined in section
(a)(7) of Rule 17f-5. The Fund represents to the Custodian that the Board has
determined that it is reasonable for the Board to rely on the Custodian to
perform the responsibilities delegated pursuant to this Contract to the
Custodian as the Foreign Custody Manager of the Portfolios.
3.2.8 EFFECTIVE DATE AND TERMINATION OF THE CUSTODIAN AS FOREIGN
CUSTODY MANAGER. The Board's delegation to the Custodian as Foreign Custody
Manager of the Portfolios shall be effective as of the date hereof and shall
remain in effect until terminated at any time, without penalty, by written
notice from the terminating party to the non-terminating party. Termination will
become effective thirty (30) days after receipt by the non-terminating party of
such notice. The provisions of Section 3.2.2 hereof shall govern the delegation
to and termination of the Custodian as Foreign Custody Manager of the Portfolios
with respect to designated countries.
4
3.3 ELIGIBLE SECURITIES DEPOSITORIES.
3.3.1 ANALYSIS AND MONITORING. The Custodian shall (a) provide the Fund
(or its duly-authorized investment manager or investment adviser) with an
analysis of the custody risks associated with maintaining assets with the
Eligible Securities Depositories set forth on Schedule B hereto in accordance
with section (a)(1)(i)(A) of Rule 17f-7, and (b) monitor such risks on a
continuing basis, and promptly notify the Fund (or its duly-authorized
investment manager or investment adviser) of any material change in such risks,
in accordance with section (a)(1)(i)(B) of Rule 17f-7.
3.3.2 STANDARD OF CARE. The Custodian agrees to exercise reasonable
care, prudence and diligence in performing the duties set forth in Section
3.3.1.
4. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE PORTFOLIOS HELD
OUTSIDE THE UNITED STATES.
4.1 DEFINITIONS. Capitalized terms in this Article 4 shall have the following
meanings:
"Foreign Securities System" means an Eligible Securities Depository listed on
Schedule B hereto.
"Foreign Sub-Custodian" means a foreign banking institution serving as an
Eligible Foreign Custodian.
4.2. HOLDING SECURITIES. The Custodian shall identify on its books as belonging
to the Portfolios the foreign securities held by each Foreign Sub-Custodian or
Foreign Securities System. The Custodian may hold foreign securities for all of
its customers, including the Portfolios, with any Foreign Sub-Custodian in an
account that is identified as belonging to the Custodian for the benefit of its
customers, provided however, that (i) the records of the Custodian with respect
to foreign securities of the Portfolios which are maintained in such account
shall identify those securities as belonging to the Portfolios and (ii), to the
extent permitted and customary in the market in which the account is maintained,
the Custodian shall require that securities so held by the Foreign Sub-Custodian
be held separately from any assets of such Foreign Sub-Custodian or of other
customers of such Foreign Sub-Custodian.
4.3. FOREIGN SECURITIES SYSTEMS. Foreign securities shall be maintained in a
Foreign Securities System in a designated country through arrangements
implemented by the Custodian or a Foreign Sub-Custodian, as applicable, in such
country.
4.4. TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT.
4.4.1. DELIVERY OF FOREIGN ASSETS. The Custodian or a Foreign
Sub-Custodian shall release and deliver foreign securities of the Portfolios
held by the Custodian or such Foreign Sub-Custodian, or in a Foreign Securities
System account, only upon receipt of
5
Proper Instructions, which may be continuing instructions when deemed
appropriate by the parties, and only in the following cases:
(i) upon the sale of such foreign securities for the Portfolio in
accordance with commercially reasonable market practice in the
country where such foreign securities are held or traded,
including, without limitation: (A) delivery against
expectation of receiving later payment; or (B) in the case of
a sale effected through a Foreign Securities System, in
accordance with the rules governing the operation of the
Foreign Securities System;
(ii) in connection with any repurchase agreement related to foreign
securities;
(iii) to the depository agent in connection with tender or other
similar offers for foreign securities of the Portfolios;
(iv) to the issuer thereof or its agent when such foreign
securities are called, redeemed, retired or otherwise become
payable;
(v) to the issuer thereof, or its agent, for transfer into the
name of the Custodian (or the name of the respective Foreign
Sub-Custodian or of any nominee of the Custodian or such
Foreign Sub-Custodian) or for exchange for a different number
of bonds, certificates or other evidence representing the same
aggregate face amount or number of units;
(vi) to brokers, clearing banks or other clearing agents for
examination or trade execution in accordance with market
custom; provided that in any such case the Foreign
Sub-Custodian shall have no responsibility or liability for
any loss arising from the delivery of such securities prior to
receiving payment for such securities except as may arise from
the Foreign Sub-Custodian's own negligence or willful
misconduct;
(vii) for exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer of such
securities, or pursuant to provisions for conversion contained
in such securities, or pursuant to any deposit agreement;
(viii) in the case of warrants, rights or similar foreign securities,
the surrender thereof in the exercise of such warrants, rights
or similar securities or the surrender of interim receipts or
temporary securities for definitive securities;
(ix) for delivery as security in connection with any borrowing by
the Portfolios requiring a pledge of assets by the Portfolios;
(x) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
6
(xi) in connection with the lending of foreign securities; and
(xii) for any other purpose, but only upon receipt of Proper
Instructions specifying the foreign securities to be delivered
and naming the person or persons to whom delivery of such
securities shall be made.
4.4.2. PAYMENT OF PORTFOLIO MONIES. Upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate by
the parties, the Custodian shall pay out, or direct the respective Foreign
Sub-Custodian or the respective Foreign Securities System to pay out, monies of
a Portfolio in the following cases only:
(i) upon the purchase of foreign securities for the Portfolio,
unless otherwise directed by Proper Instructions, by (A)
delivering money to the seller thereof or to a dealer therefor
(or an agent for such seller or dealer) against expectation of
receiving later delivery of such foreign securities; or (B) in
the case of a purchase effected through a Foreign Securities
System, in accordance with the rules governing the operation
of such Foreign Securities System;
(ii) in connection with the conversion, exchange or surrender of
foreign securities of the Portfolio;
(iii) for the payment of any expense or liability of the Portfolio,
including but not limited to the following payments: interest,
taxes, investment advisory fees, transfer agency fees, fees
under this Contract, legal fees, accounting fees, and other
operating expenses;
(iv) for the purchase or sale of foreign exchange or foreign
exchange contracts for the Portfolio, including transactions
executed with or through the Custodian or its Foreign
Sub-Custodians;
(v) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(vi) for payment of part or all of the dividends received in
respect of securities sold short;
(vii) in connection with the borrowing or lending of foreign
securities; and
(viii) for any other purpose, but only upon receipt of Proper
Instructions specifying the amount of such payment and naming
the person or persons to whom such payment is to be made.
4.4.3. MARKET CONDITIONS. Notwithstanding any provision of this
Contract to the contrary, settlement and payment for Foreign Assets received for
the account of the Portfolios and delivery of Foreign Assets maintained for the
account of the Portfolios
7
may be effected in accordance with the customary established securities trading
or processing practices and procedures in the country or market in which the
transaction occurs, including, without limitation, delivering Foreign Assets to
the purchaser thereof or to a dealer therefor (or an agent for such purchaser or
dealer) with the expectation of receiving later payment for such Foreign Assets
from such purchaser or dealer.
The Custodian shall provide to the Board the information with respect to custody
and settlement practices in countries in which the Custodian employs a Foreign
Sub-Custodian described on Schedule C hereto at the time or times set forth on
such Schedule. The Custodian may revise Schedule C from time to time, provided
that no such revision shall result in the Board being provided with
substantively less information than had been previously provided hereunder.
4.5. REGISTRATION OF FOREIGN SECURITIES. The foreign securities maintained in
the custody of a Foreign Sub-Custodian (other than bearer securities) shall be
registered in the name of the applicable Portfolio or in the name of the
Custodian or in the name of any Foreign Sub-Custodian or in the name of any
nominee of the foregoing, and the Fund on behalf of such Portfolio agrees to
hold any such nominee harmless from any liability as a holder of record of such
foreign securities. The Custodian or a Foreign Sub-Custodian shall not be
obligated to accept securities on behalf of a Portfolio under the terms of this
Contract unless the form of such securities and the manner in which they are
delivered are in accordance with reasonable market practice.
4.6 BANK ACCOUNTS. The Custodian shall identify on its books as belonging to the
Fund cash (including cash denominated in foreign currencies) deposited with the
Custodian. Where the Custodian is unable to maintain, or market practice does
not facilitate the maintenance of, cash on the books of the Custodian, a bank
account or bank accounts shall be opened and maintained outside the United
States on behalf of a Portfolio with a Foreign Sub-Custodian. All accounts
referred to in this Section shall be subject only to draft or order by the
Custodian (or, if applicable, such Foreign Sub-Custodian) acting pursuant to the
terms of this Agreement to hold cash received by or from or for the account of
the Portfolio. Xxxx maintained on the books of the Custodian (including its
branches, subsidiaries and affiliates), regardless of currency denomination, is
maintained in bank accounts established under, and subject to the laws of, The
Commonwealth of Massachusetts.
4.7. COLLECTION OF INCOME. The Custodian shall use reasonable commercial efforts
to collect all income and other payments with respect to the Foreign Assets held
hereunder to which the Portfolios shall be entitled and shall credit such
income, as collected, to the applicable Portfolio. In the event that
extraordinary measures are required to collect such income, the Fund and the
Custodian shall consult as to such measures and as to the compensation and
expenses of the Custodian relating to such measures.
4.8 SHAREHOLDER RIGHTS. With respect to the foreign securities held pursuant to
this Article 4, the Custodian will use reasonable commercial efforts to
facilitate the exercise of voting and other shareholder rights, subject always
to the laws, regulations and practical constraints that may exist in the country
where such securities are issued. The
8
Fund acknowledges that local conditions, including lack of regulation, onerous
procedural obligations, lack of notice and other factors may have the effect of
severely limiting the ability of the Fund to exercise shareholder rights.
4.9. COMMUNICATIONS RELATING TO FOREIGN SECURITIES. The Custodian shall transmit
promptly to the Fund written information with respect to materials received by
the Custodian via the Foreign Sub-Custodians from issuers of the foreign
securities being held for the account of the Portfolios (including, without
limitation, pendency of calls and maturities of foreign securities and
expirations of rights in connection therewith). With respect to tender or
exchange offers, the Custodian shall transmit promptly to the Fund written
information with respect to materials so received by the Custodian from issuers
of the foreign securities whose tender or exchange is sought or from the party
(or its agents) making the tender or exchange offer. The Custodian shall not be
liable for any untimely exercise of any tender, exchange or other right or power
in connection with foreign securities or other property of the Portfolios at any
time held by it unless (i) the Custodian or the respective Foreign Sub-Custodian
is in actual possession of such foreign securities or property and (ii) the
Custodian receives Proper Instructions with regard to the exercise of any such
right or power, and both (i) and (ii) occur at least three business days prior
to the date on which the Custodian is to take action to exercise such right or
power.
4.10. LIABILITY OF FOREIGN SUB-CUSTODIANS. Each agreement pursuant to which the
Custodian employs a Foreign Sub-Custodian shall, to the extent possible, require
the Foreign Sub-Custodian to exercise reasonable care in the performance of its
duties, and to indemnify, and hold harmless, the Custodian from and against any
loss, damage, cost, expense, liability or claim arising out of or in connection
with the Foreign Sub-Custodian's performance of such obligations. At the Fund's
election, the Portfolios shall be entitled to be subrogated to the rights of the
Custodian with respect to any claims against a Foreign Sub-Custodian as a
consequence of any such loss, damage, cost, expense, liability or claim if and
to the extent that the Portfolios have not been made whole for any such loss,
damage, cost, expense, liability or claim.
4.11. TAX LAW. The Custodian shall have no responsibility or liability for any
obligations now or hereafter imposed on the Fund, the Portfolios or the
Custodian as custodian of the Portfolios by the tax law of the United States or
of any state or political subdivision thereof. It shall be the responsibility of
the Fund to notify the Custodian of the obligations imposed on the Fund with
respect to the Portfolios or the Custodian as custodian of the Portfolios by the
tax law of countries other than those mentioned in the above sentence, including
responsibility for withholding and other taxes, assessments or other
governmental charges, certifications and governmental reporting. The sole
responsibility of the Custodian with regard to such tax law shall be to use
reasonable efforts to assist the Fund with respect to any claim for exemption or
refund under the tax law of countries for which the Fund has provided such
information.
4.12. LIABILITY OF CUSTODIAN. Except as may arise from the Custodian's own
negligence or willful misconduct or the negligence or willful misconduct of a
Sub-Custodian, the Custodian shall be without liability to the Fund for any
loss, liability, claim or expense resulting from or caused by anything which is
part of Country Risk.
9
The Custodian shall be liable for the acts or omissions of a Foreign
Sub-Custodian to the same extent as set forth with respect to sub-custodians
generally in the Contract and, regardless of whether assets are maintained in
the custody of a Foreign Sub-Custodian or a Foreign Securities System, the
Custodian shall not be liable for any loss, damage, cost, expense, liability or
claim resulting from nationalization, expropriation, currency restrictions, or
acts of war or terrorism, or any other loss where the Sub-Custodian has
otherwise acted with reasonable care.
III. Except as specifically superseded or modified herein, the terms and
provisions of the Contract shall continue to apply with full force and
effect. In the event of any conflict between the terms of the Contract
prior to this Amendment and this Amendment, the terms of this Amendment
shall prevail. If the Custodian is delegated the responsibilities of
Foreign Custody Manager pursuant to the terms of Article 3 hereof, in
the event of any conflict between the provisions of Articles 3 and 4
hereof, the provisions of Article 3 shall prevail.
[Remainder of page intentionally blank.]
10
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
executed in its name and behalf by its duly authorized representative as of the
date first above written.
WITNESSED BY: STATE STREET BANK and TRUST COMPANY
/s/ Xxxxxxx X. XxXxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------- -----------------------------------------
Xxxxxxx X. XxXxxxxx Name: Xxxxxx X. Xxxxx
V.P. and Assoc. Counsel Title: Vice Chairman and Chief Operating Officer
WITNESSED BY: EACH OF THE FUNDS LISTED ON
APPENDIX A
/s/ Xxxx X. Xxxxxx By: /s/ X. Xxxxxx Xxxxx XXX
--------------------------- -----------------------------------------
Xxxx X. Xxxxxx Name: X. Xxxxxx Xxxxx XXX
Assistant Secretary Title: Vice President and Secretary
11
APPENDIX A
As of May 24, 2001
Xxx Xxxxxx Xxxxxxxx Fund
Xxx Xxxxxx Corporate Bond Fund
Xxx Xxxxxx Emerging Growth Fund
Xxx Xxxxxx Enterprise Fund
Xxx Xxxxxx Equity Income Fund
Xxx Xxxxxx Government Securities Fund
Xxx Xxxxxx Growth and Income Fund
Xxx Xxxxxx Harbor Fund
Xxx Xxxxxx High Income Corporate Bond Fund
XXX XXXXXX LIFE INVESTMENT TRUST
On behalf of its series
Aggressive Growth Portfolio
Asset Allocation Portfolio
Xxxxxxxx Portfolio
Domestic Income portfolio
Emerging Growth Portfolio
Enterprise Portfolio
Global Equity Portfolio
Government Portfolio
Growth and income Portfolio
Money Market portfolio
Select Growth Portfolio
Strategic Stock Portfolio
Technology Portfolio
Xxx Xxxxxx Limited Maturity Government Fund
Xxx Xxxxxx Xxxx Fund
Xxx Xxxxxx Real Estate Securities Fund
Xxx Xxxxxx Reserve Fund
XXX XXXXXX TAX-EXEMPT TRUST
On behalf of its series
Xxx Xxxxxx Technology Fund
Xxx Xxxxxx U.S. Government Trust for Income
XXX XXXXXX EQUITY TRUST II
On behalf of its series
Xxx Xxxxxx Tax Managed Equity Growth Fund
Xxx Xxxxxx Technology Fund
i
APPENDIX A
As of May 24, 2001
Xxx Xxxxxx Municipal Income Trust
Xxx Xxxxxx California Municipal Trust
Xxx Xxxxxx High Income Trust
Xxx Xxxxxx High Income Trust II
Xxx Xxxxxx Investment Grade Municipal Trust
Xxx Xxxxxx Prime Rate Income Trust
Xxx Xxxxxx Senior Income Trust
Xxx Xxxxxx Senior Floating Rate Fund
Xxx Xxxxxx Municipal Trust
Xxx Xxxxxx California Quality Municipal Trust
Xxx Xxxxxx Florida Quality Municipal Trust
Xxx Xxxxxx New York Quality Municipal Trust
Xxx Xxxxxx Ohio Quality Municipal Trust
Xxx Xxxxxx Pennsylvania Quality Municipal Trust
Xxx Xxxxxx Trust for Insured Municipals
Xxx Xxxxxx Trust for Investment Grade Municipals
Xxx Xxxxxx Trust for Investment Grade California Municipals
Xxx Xxxxxx Trust for Investment Grade Florida Municipals
Xxx Xxxxxx Trust for Investment Grade New Jersey Municipals
Xxx Xxxxxx Trust for Investment Grade New York Municipals
Xxx Xxxxxx Trust for Investment Grade Pennsylvania Municipals
Xxx Xxxxxx Municipal Opportunity Trust
Xxx Xxxxxx Advantage Municipal Income Trust
Xxx Xxxxxx Advantage Pennsylvania Municipal Income Trust
Xxx Xxxxxx Strategic Sector Municipal Trust
Xxx Xxxxxx Value Municipal Income Trust
Xxx Xxxxxx California Value Municipal Income Trust
Xxx Xxxxxx Massachusetts Value Municipal Income Trust
Xxx Xxxxxx New York Value Municipal Income Trust
Xxx Xxxxxx Ohio Value Municipal Income Trust
Xxx Xxxxxx Pennsylvania Value Municipal Income Trust
Xxx Xxxxxx Municipal Opportunity Trust II
Xxx Xxxxxx Advantage Municipal Income Trust II
Xxx Xxxxxx Select Sector Municipal Trust
Xxx Xxxxxx Bond Fund
Xxx Xxxxxx Income Trust
ii
APPENDIX A
As of May 24, 2001
XXX XXXXXX U.S. GOVERNMENT TRUST
On behalf of its series
Xxx Xxxxxx U.S. Government Fund
XXX XXXXXX TAX FREE TRUST
On behalf of its series
Xxx Xxxxxx Insured Tax Free Income Fund
Xxx Xxxxxx Tax Free High Income Fund
Xxx Xxxxxx California Insured Tax Free Fund
Xxx Xxxxxx Municipal Income Fund
Xxx Xxxxxx Intermediate Term Municipal Income Fund
Xxx Xxxxxx Florida Insured Tax Free Income Fund
Xxx Xxxxxx New York Insured Tax Free Income Fund
XXX XXXXXX TRUST
On behalf of its series
Xxx Xxxxxx High Yield Fund
Xxx Xxxxxx Managed Short Term Income Fund
XXX XXXXXX EQUITY TRUST
On behalf of its series
Xxx Xxxxxx Utility Fund
Xxx Xxxxxx Growth Fund
Xxx Xxxxxx Aggressive Growth Fund
Xxx Xxxxxx Small Cap Value Fund
Xxx Xxxxxx Small Cap Growth Fund
Xxx Xxxxxx Small Company Growth Fund
Xxx Xxxxxx Select Growth Fund
Xxx Xxxxxx Value Opportunities Fund
Xxx Xxxxxx Pennsylvania Tax Free Income Fund
Xxx Xxxxxx Tax Free Money Fund
Xxx Xxxxxx Exchange Fund
iii
STATE STREET SCHEDULE A
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Argentina Citibank, N.A.
Australia Westpac Banking Corporation
Austria Erste Bank der Osterreichischen
Sparkassen AG
Bahrain HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Bangladesh Standard Chartered Bank
Belgium Fortis Bank nv-sa
Bermuda The Bank of Bermuda Limited
Bolivia Citibank, N. A.
Botswana Barclays Bank of Botswana Limited
Brazil Citibank, N.A.
Bulgaria ING Bank N.V.
Canada State Street Trust Company Canada
Chile Citibank, N.A.
People's Republic The Hongkong and Shanghai
of China Banking Corporation Limited,
Shanghai and Shenzhen branches
Colombia Cititrust Colombia S.A. Sociedad Fiduciaria
12/11/01 1
STATE STREET SCHEDULE A
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Costa Rica Banco BCT S.A.
Croatia Privredna Banka Zagreb d.d
Cyprus The Cyprus Popular Bank Ltd.
Czech Republic Ceskoslovenska Obchodni
Banka, A.S.
Denmark Den Danske Bank
Ecuador Citibank, N.A.
Egypt Egyptian British Bank S.A.E.
(as delegate of The Hongkong
and Shanghai Banking Corporation
Limited)
Estonia Hansabank
Finland Xxxxxx Bank Plc.
France BNP Paribas, S.A.
Germany Dresdner Bank AG
Ghana Barclays Bank of Ghana Limited
Greece National Bank of Greece S.A.
Hong Kong Standard Chartered Bank
Hungary Citibank Rt.
12/11/01 2
STATE STREET SCHEDULE A
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Iceland Icebank Ltd.
India Deutsche Bank AG
The Hongkong and Shanghai
Banking Corporation Limited
Indonesia Standard Chartered Bank
Ireland Bank of Ireland
Israel Bank Hapoalim B.M.
Italy BNP Paribas, Italian Branch
Ivory Coast Societe Generale de Banques
en Cote d'Ivoire
Jamaica Scotiabank Jamaica Trust and Merchant
Bank Ltd.
Japan The Fuji Bank, Limited
The Sumitomo Bank, Limited
Jordan HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Kazakhstan HSBC Bank Kazakhstan
Kenya Barclays Bank of Kenya Limited
Republic of Korea The Hongkong and Shanghai Banking
Corporation Limited
12/11/01 3
STATE STREET SCHEDULE A
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Latvia A/s Hansabanka
Lebanon HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Lithuania Vilniaus Bankas AB
Malaysia Standard Chartered Bank Malaysia Berhad
Mauritius The Hongkong and Shanghai
Banking Corporation Limited
Mexico Citibank Mexico, S.A.
Morocco Banque Commerciale du Maroc
Namibia Standard Bank Namibia Limited -
Netherlands Fortis Bank (Nederland) N.V.
New Zealand ANZ Banking Group (New Zealand) Limited
Nigeria Stanbic Merchant Bank Nigeria Limited
Norway Christiania Bank og Kreditkasse ASA
Oman HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Pakistan Deutsche Bank AG
Palestine HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
12/11/01 4
STATE STREET SCHEDULE A
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Panama BankBoston, N.A.
Peru Citibank, N.A.
Philippines Standard Chartered Bank
Poland Citibank (Poland) S.A.
Portugal Banco Comercial Portugues
Qatar HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Romania ING Bank N.V.
Russia Credit Suisse First Boston AO - Moscow
(as delegate of Credit Suisse
First Boston - Zurich)
Singapore The Development Bank of Singapore Limited
Slovak Republic Ceskoslovenska Obchodni Banka, A.S.
Slovenia Bank Austria Creditanstalt d.d. - Ljubljana
South Africa Standard Bank of South Africa Limited
Spain Banco Santander Central Hispano S.A.
Sri Lanka The Hongkong and Shanghai
Banking Corporation Limited
Swaziland Standard Bank Swaziland Limited
12/11/01 5
STATE STREET SCHEDULE A
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Sweden Skandinaviska Enskilda Banken
Switzerland UBS AG
Taiwan - R.O.C. Central Trust of China
Thailand Standard Chartered Bank
Trinidad & Tobago Republic Bank Limited
Tunisia Banque Internationale Arabe de Tunisie
Turkey Citibank, N.A.
Ukraine ING Bank Ukraine
United Kingdom State Street Bank and Trust Company,
London Branch
Uruguay BankBoston, N.A.
Venezuela Citibank, N.A.
Vietnam The Hongkong and Shanghai
Banking Corporation Limited
Zambia Barclays Bank of Zambia Limited
Zimbabwe Barclays Bank of Zimbabwe Limited
12/11/01 6
STATE STREET SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Argentina Caja de Valores S.A.
Australia Austraclear Limited
Reserve Bank Information and
Transfer System
Austria Oesterreichische Kontrollbank AG
(Wertpapiersammelbank Division)
Belgium Caisse Interprofessionnelle de Depots et
de Virements de Titres, S.A.
Banque Nationale de Belgique
Brazil Companhia Brasileira de Liquidacao e Custodia
Bulgaria Central Depository AD
Bulgarian National Bank
Canada Canadian Depository for Securities Limited
Chile Deposito Central de Valores S.A.
People's Republic Shanghai Securities Central Clearing &
of China Registration Corporation
Shenzhen Securities Central Clearing Co., Ltd.
Colombia Deposito Centralizado de Valores
Costa Rica Central de Valores S.A.
10/12/00 1
STATE STREET SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Croatia Ministry of Finance
National Bank of Croatia
Sredisnja Depozitarna Agencija d.d.
Czech Republic Stredisko cennych papiru
Czech National Bank
Denmark Vaerdipapircentralen (Danish Securities Center)
Egypt Misr for Clearing, Settlement, and Depository
Estonia Eesti Vaartpaberite Keskdepositoorium
Finland Finnish Central Securities Depository
France Societe Interprofessionnelle pour la Compensation
des Valeurs Mobilieres
Germany Clearstream Banking AG, Frankfurt
Greece Bank of Greece,
System for Monitoring Transactions in
Securities in Book-Entry Form
Apothetirion Titlon AE - Central Securities
Depository
Hong Kong Central Clearing and Settlement System
Central Money Markets Unit
Hungary Kozponti Elszamolohaz es Ertektar
(Budapest) Rt. (KELER)
10/12/00 2
STATE STREET SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
India National Securities Depository Limited
Central Depository Services India Limited
Reserve Bank of India
Indonesia Bank Indonesia
PT Kustodian Sentral Efek Indonesia
Ireland Central Bank of Ireland
Securities Settlement Office
Israel Tel Aviv Stock Exchange Clearing
House Ltd. (TASE Clearinghouse)
Italy Monte Titoli S.p.A.
Banca d'Italia
Ivory Coast Depositaire Central - Banque de Reglement
Jamaica Jamaica Central Securities Depository
Japan Japan Securities Depository Center (JASDEC)
Bank of Japan Net System
Kazakhstan Central Depository of Securities
Kenya Central Bank of Kenya
Republic of Korea Korea Securities Depository
Latvia Latvian Central Depository
10/12/00 3
STATE STREET SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Lebanon Custodian and Clearing Center of
Financial Instruments for Lebanon
and the Middle East (Midclear) X.X.X.
Banque du Liban
Lithuania Central Securities Depository of Lithuania
Malaysia Malaysian Central Depository Sdn. Bhd.
Bank Negara Malaysia,
Scripless Securities Trading and Safekeeping
System
Mauritius Central Depository and Settlement Co. Ltd.
Bank of Mauritius
Mexico S.D. INDEVAL
(Instituto para el Deposito de Valores)
Morocco Maroclear
Netherlands Nederlands Centraal Instituut voor
Giraal Effectenverkeer B.V. (NECIGEF)
New Zealand New Zealand Central Securities
Depository Limited
Nigeria Central Securities Clearing System Limited
Norway Verdipapirsentralen (Norwegian Central
Securities Depository)
Oman Muscat Depository & Securities
Registration Company, SAOC
10/12/00 4
STATE STREET SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Pakistan Central Depository Company of Pakistan Limited
State Bank of Pakistan
Palestine Clearing Depository and Settlement, a department
of the Palestine Stock Exchange
Peru Caja de Valores y Liquidaciones, Institucion de
Compensacion y Liquidacion de Valores S.A
Philippines Philippine Central Depository, Inc.
Registry of Scripless Securities
(XXXX) of the Bureau of Treasury
Poland National Depository of Securities
(Krajowy Depozyt Papierow Wartos<180>ciowych SA)
Central Treasury Bills Registrar
Portugal Central de Valores Mobiliarios
Qatar Central Clearing and Registration (CCR), a
department of the Doha Securities Market
Romania National Securities Clearing, Settlement and
Depository Company
Bucharest Stock Exchange Registry Division
National Bank of Romania
Singapore Central Depository (Pte) Limited
Monetary Authority of Singapore
10/12/00 5
STATE STREET SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Slovak Republic Stredisko cennych papierov
National Bank of Slovakia
Slovenia Klirinsko Depotna Xxxxxx x.x.
South Africa Central Depository Limited
Share Transactions Totally Electronic
(STRATE) Ltd.
Spain Servicio de Compensacion y
Liquidacion de Valores, S.A.
Banco de Espana, Central de Anotaciones en Cuenta
Sri Lanka Central Depository System (Pvt) Limited
Sweden Vardepapperscentralen VPC AB
(Swedish Central Securities Depository)
Switzerland SegaIntersettle AG (SIS)
Taiwan - R.O.C. Taiwan Securities Central Depository Co., Ltd.
Thailand Thailand Securities Depository Company Limited
Tunisia Societe Tunisienne Interprofessionelle pour la
Compensation et de Depots des Valeurs Mobilieres
Turkey Takas ve Saklama Bankasi A.S. (TAKASBANK)
Central Bank of Turkey
10/12/00 6
STATE STREET SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Ukraine National Bank of Ukraine
United Kingdom Central Gilts Office and
Central Money Markets Office
Venezuela Banco Central de Venezuela
Zambia XxXX Central Shares Depository Limited
Bank of Zambia
TRANSNATIONAL
Euroclear
Clearstream Banking AG
10/12/00 7
SCHEDULE C
MARKET INFORMATION
PUBLICATION/TYPE OF INFORMATION BRIEF DESCRIPTION
------------------------------- -----------------
(FREQUENCY)
The Guide to Custody in World Markets An overview of safekeeping and settlement practices and procedures
(annually) in each market in which State Street Bank and Trust Company offers
custodial services.
Global Custody Network Review Information relating to the operating history and structure of
(annually) depositories and subcustodians located in the markets in which State
Street Bank and Trust Company offers custodial services, including
transnational depositories.
Global Legal Survey With respect to each market in which State Street Bank and Trust
(annually) Company offers custodial services, opinions relating to whether
local law restricts (i) access of a fund's independent public
accountants to books and records of a Foreign Sub-Custodian or
Foreign Securities System, (ii) the Fund's ability to recover in the
event of bankruptcy or insolvency of a Foreign Sub-Custodian or
Foreign Securities System, (iii) the Fund's ability to recover in
the event of a loss by a Foreign Sub-Custodian or Foreign Securities
System, and (iv) the ability of a foreign investor to convert cash
and cash equivalents to U.S. dollars.
Subcustodian Agreements Copies of the subcustodian contracts State Street Bank and Trust
(annually) Company has entered into with each subcustodian in the markets in
which State Street Bank and Trust Company offers subcustody services
to its US mutual fund clients.
Network Bulletins (weekly): Developments of interest to investors in the markets in which State
Street Bank and Trust Company offers custodial services.
Foreign Custody Advisories (as
necessary): With respect to markets in which State Street Bank and Trust Company
offers custodial services which exhibit special custody risks,
developments which may impact State Street's ability to deliver
expected levels of service.
EXHIBIT 10.1
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 31st day of May, 1997 by and between each of the
XXX XXXXXX AMERICAN CAPITAL OPEN END FUNDS set forth on Schedule "A" hereto,
which are organized under the laws of the state and as the entities set forth
in Schedule "A" hereto (collectively, the "Funds"), and ACCESS INVESTOR
SERVICES, INC., a Delaware corporation ("ACCESS").
R E C I T A L:
-------------
WHEREAS, each of the Funds desires to appoint ACCESS as its transfer
agent, dividend disbursing agent and shareholder service agent and ACCESS
desires to accept such appointments;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
Article 1. Terms of Appointment; Duties of ACCESS.
---------------------------------------
1.01 Subject to the terms and conditions set forth in this Agreement, each
of the Funds hereby employs and appoints ACCESS as its transfer agent, dividend
disbursing agent and shareholder service agent.
1.02 ACCESS hereby accepts such employment and appointments and agrees
that on and after the effective date of this Agreement it will act as the
transfer agent, dividend disbursing agent and shareholder service agent for
each of the Funds on the terms and conditions set forth herein.
1.03 ACCESS agrees that its duties and obligations hereunder will be
performed in a competent, efficient and workmanlike manner with due diligence
in accordance with reasonable industry practice, and that the necessary
facilities, equipment and personnel for such performance will be provided.
1.04 For a period of one year commencing on the effective date of this
Agreement, ACCESS and each of the Funds agree that the retention of (i) the
chief executive officer, president, chief financial officer, chief operating
officer and secretary of ACCESS and (ii) each director, officer and employee of
ACCESS 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 Funds (each
person referred to in (i) or (ii) hereinafter being referred to as an
"Essential Person"), in his or her current capacities, is in the best interest
of the Funds and the Funds' shareholders. In connection with ACCESS's
acceptance of employment hereunder, ACCESS hereby agrees and covenants for
itself and on behalf of its Affiliates that neither ACCESS nor any of its
Affiliates shall make any material or significant personnel changes or replace
or seek to replace any Essential Person or cause to be replaced any Essential
Person, in each case without first informing the Board of Trustees of the Funds
in a timely manner. In addition, neither ACCESS nor any Affiliate of ACCESS
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 informing the Board of Trustees of the Funds in a timely
manner.
1.05 In order to assure compliance with section 1.03 and to implement a
cooperative effort to improve and maintain the quality of transfer agency,
dividend disbursing and shareholder services received by each of the Funds and
their shareholders, ACCESS agrees to provide and maintain quantitative
performance objectives, including maximum target turn-around times and maximum
target error rates, for the various services provided hereunder. ACCESS also
agrees to provide a reporting system designed to provide the Board of Trustees
of each of the Funds (the "Board") on a quarterly basis with quantitative data
comparing actual performance for the period with the performance objectives.
The foregoing procedures are designed to provide a basis for continuing
monitoring by the Board of the quality of services rendered hereunder.
Article 2. Fees and Expenses.
------------------
2.01 For the services to be performed by ACCESS pursuant to this
Agreement, each of the Funds agrees to pay ACCESS the fees provided in the fee
schedules agreed upon from time to time by each of the Funds and ACCESS.
2.02 In addition to the amounts paid under section 2.01 above, each of the
Funds agrees to reimburse ACCESS promptly for such Fund's reasonable
out-of-pocket expenses or advances paid on its behalf by ACCESS in connection
with its performance under this Agreement for postage, freight, envelopes,
checks, drafts, continuous forms, reports and statements, telephone, telegraph,
costs of outside mailing firms, necessary outside record storage costs, media
for storage of records (e.g., microfilm, microfiche and computer tapes) and
printing costs incurred due to special requirements of such Fund. In addition,
any other special out-of-pocket expenses paid by ACCESS at the specific request
of any of the Funds will be promptly reimbursed by the requesting Fund.
Postage for mailings of dividends, proxies, Fund reports and other mailings
Page 2
to all shareholder accounts shall be advanced to ACCESS by the concerned Fund
three business days prior to the mailing date of such materials.
Article 3. Representations and Warranties of Access.
-----------------------------------------
ACCESS represents and warrants to each of the Funds that:
3.01 It is a corporation duly organized and existing and in good standing
under the laws of the State of Delaware.
3.02 It is duly qualified to carry on its business in each jurisdiction in
which the nature of its business requires it to be so qualified.
3.03 It is empowered under applicable laws and regulations and by its
charter and bylaws 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.
3.05 It has and will continue to have during the term of this Agreement
access to the necessary facilities, equipment and personnel to perform its
duties and obligations hereunder.
3.06 It will maintain a system regarding "as of" transactions as follows:
(a) Each "as of" transaction effected at a price other than that in
effect on the day of processing for which an estimate has not been given
to any of the affected Funds and which is necessitated by ACCESS' error,
or delay for which ACCESS is responsible or which could have been avoided
through the exercise of reasonable care, will be identified, and the net
effect of such transactions determined, on a daily basis for each such
Fund.
(b) The cumulative net effect of the transactions included in
paragraph (a) above will be determined each day throughout each month.
If, on any day during the month, the cumulative net effect upon any Fund
is negative and exceeds an amount equivalent to 1/2 of 1 cent per share
of such Fund, ACCESS shall promptly make a payment to such Fund (in cash
or through use of a credit as described in paragraph (c) below) in such
amount as necessary to reduce the negative cumulative net effect to less
than 1/2 of 1 cent per share of such Fund. If on the last business day
of the month the cumulative net effect (adjusted by the amount of any
payments or credits used pursuant to the preceding sentence) upon any
Fund is negative, such Fund shall be entitled to a reduction in the
monthly transfer agency fee next payable by an equivalent amount, except
as provided in paragraph (c) below. If on the last
Page 3
business day of the month the cumulative net effect (similarly adjusted)
upon any Fund is positive, ACCESS shall be entitled to recover certain
past payments, credits used and reductions in fees, and to a credit
against all future payments and fee reductions made under this paragraph
to such Fund, as described in paragraph (c) below.
(c) At the end of each month, any positive cumulative net effect
upon any Fund shall be deemed to be a credit to ACCESS which shall first
be applied to recover any payments, credits used and fee reductions made
by ACCESS to such Fund under paragraph (b) above during the calendar year
by increasing the amount of the monthly transfer agency fee next payable
in an amount equal to prior payments, credits used and fee reductions
made during such year, but not exceeding the sum of that month's credit
and credits arising in prior months during such year to the extent such
prior credits have not previously been utilized as contemplated by this
paragraph (c). Any portion of a credit to ACCESS not so used shall
remain as a credit to be used as payment against the amount of any future
negative cumulative net effects which would otherwise require a payment,
use of a credit or fee reduction to such Fund pursuant to paragraph (b)
above.
Article 4. Representations and Warranties of the Funds.
--------------------------------------------
Each of the Funds hereby represents and warrants on behalf of itself
only and not on behalf of any other Funds which are a party to this Agreement
that:
4.01 It is duly organized and existing and in good standing under the laws
of the commonwealth or state set forth in Schedule "A" hereto.
4.02 It is empowered under applicable laws and regulations and by its
Declaration of Trust and by-laws to enter into and perform this Agreement.
4.03 All requisite proceedings have been taken by its Board to authorize
it to enter into and perform this Agreement.
4.04 It is an open-end, management investment company registered under the
Investment Company Act of 1940, as amended.
Page 4
4.05 A registration statement under the Securities Act of 1933, as
amended, is currently effective and will remain effective, and appropriate
state securities laws filings have been made and will continue to be made, with
respect to all of its shares being offered for sale.
Article 5. Indemnification.
---------------
5.01 ACCESS shall not be responsible for and each of the Funds shall
indemnify and hold ACCESS harmless from and against any and all losses,
damages, costs, charges, reasonable counsel fees, payments, expenses and
liabilities (collectively, "Losses") arising out of or attributable to:
(a) All actions of ACCESS required to be taken by ACCESS for the
benefit of such Fund pursuant to this Agreement, provided that ACCESS has
acted in good faith with due diligence and without negligence or willful
misconduct.
(b) The reasonable reliance by ACCESS on, or reasonable use by
ACCESS of, information, records and documents which have been prepared or
maintained by or on behalf of such Fund or have been furnished to ACCESS
by or on behalf of such Fund.
(c) The reasonable reliance by ACCESS on, or the carrying out by
ACCESS of, any instructions or requests of such Fund.
(d) The offer or sale of such Fund's shares in violation of any
requirement under the federal securities laws or regulations or the
securities laws or regulations of any 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 unless
such violation results from any failure by ACCESS to comply with written
instructions of such Fund that no offers or sales of such Fund's shares
be made in general or to the residents of a particular state.
(e) Such Fund's refusal or failure to comply with the terms of this
Agreement, or such Fund's lack of good faith, negligence or willful
misconduct or the breach of any representation or warranty of such Fund
hereunder. Notwithstanding the foregoing, no Fund shall be required to
indemnify or hold ACCESS harmless from and against any Losses arising out
of or attributable to any action or failure to take action, or any
information, records or
Page 5
documents prepared or maintained, on behalf of
the Fund by the Fund's investment adviser or distributor, or any person
providing fund accounting or legal services to the Fund that is also an
officer or employee of Xxx Xxxxxx American Capital, Inc. or its
subsidiaries unless such person or entity is otherwise entitled to
indemnification from the Fund.
5.02 ACCESS shall indemnify and hold harmless each of the Funds from and
against any and all Losses arising out of or attributable to ACCESS' refusal or
failure to comply with the terms of this Agreement, or ACCESS' lack of good
faith, or its negligence or willful misconduct, or the breach of any
representation or warranty of ACCESS hereunder.
5.03 At any time ACCESS may apply to any authorized officer of any of the
Funds for instructions, and may consult with any of the Funds' legal counsel,
at the expense of such concerned Fund, with respect to any matter arising in
connection with the services to be performed by ACCESS under this Agreement,
and ACCESS shall not be liable and shall be indemnified by such concerned Fund
for any action taken or omitted by it in good faith in reasonable reliance upon
such instructions or upon the opinion of such counsel. ACCESS shall be
protected and indemnified in acting upon any paper or document reasonably
believed by ACCESS to be genuine and to have been signed by the proper person
or persons and shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the concerned Fund.
ACCESS shall also be protected and indemnified in recognizing stock
certificates which ACCESS reasonably believes to bear the proper manual or
facsimile signatures of the officers of the concerned Fund, and the proper
countersignature of any former transfer agent or registrar, or of a
co-transfer agent or co-registrar.
5.04 In the event that any 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, or other causes reasonably beyond its control,
such party shall not be liable to the other for any damages resulting from such
failure to perform or otherwise from such causes.
5.05 In no event and under no circumstances shall any party to this
Agreement be liable to another 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 one party may be
required to indemnify another, 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.
Page 6
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 Each of the Funds and ACCESS.
------------------------------------------
6.01 Each of the Funds shall promptly furnish to ACCESS the following:
(a) Certified copies of the resolution of its Board authorizing the
appointment of ACCESS and the execution and delivery of this Agreement.
(b) Certified copies of its Declaration of Trust or Articles of
Incorporation and by-laws and all amendments thereto.
6.02 ACCESS hereby agrees to maintain facilities and procedures
reasonably acceptable to each of the Funds for safekeeping of share
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such
certificates, forms and devices.
6.03 ACCESS shall keep records relating to the services to be
performed hereunder in the form and manner as it may deem advisable; provided,
however, that all accounts, books and other records of each of the Funds
(hereinafter referred to as "Fund Records") prepared or maintained by ACCESS
hereunder shall be maintained and kept current in compliance with Section 31 of
the Investment Company Act of 1940 and the Rules thereunder (such Section and
Rules being hereinafter referred to as the "1940 Act Requirements"). To the
extent required by the 1940 Act Requirements, ACCESS agrees that all Fund
Records prepared or maintained by ACCESS hereunder are the property of the
concerned Fund and shall be preserved and made available in accordance with the
1940 Act Requirements, and shall be surrendered promptly to the concerned Fund
on its request. ACCESS agrees at such reasonable times as may be requested by
the Board and at least quarterly to provide (i) written confirmation to the
Board that all Fund Records are maintained and kept current in accordance with
the 1940 Act Requirements, and (ii) such other reports regarding its
performance hereunder as may be reasonably requested by the Board.
Page 7
6.04 ACCESS and each of the Funds 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.
6.05 In case of any requests or demands for the inspection of any of
the Fund Records, ACCESS will endeavor to notify each of the concerned
Funds and to secure instructions from an authorized officer of each of the
concerned Funds as to such inspection. ACCESS reserves the right, however, to
exhibit such Fund Records to any person whenever it is advised by its counsel
that it may be held liable for the failure to exhibit such Fund records to such
person.
Article 7. Term and Termination Of Agreement.
----------------------------------
7.01 The initial term of this Agreement shall expire May 31, 1999,
and thereafter this Agreement shall automatically be renewed for
successive one year periods to begin on June 1 of each year unless any party
provides notice to the other party at least 120 days in advance of that date
that this Agreement is not to be renewed.
7.02 Notwithstanding the foregoing, any party may terminate this
Agreement for good and reasonable cause at any time by giving written
notice to the other party at least 60 days prior to the date on which such
termination is to be effective or such shorter period as may be required by
law.
7.03 Any unpaid fees or reimbursable expenses payable to ACCESS at
the termination date of this Agreement shall be due on that termination date.
ACCESS agrees to use its best efforts to cooperate with the Funds and the
successor transfer, dividend disbursement, or shareholder servicing agent
or agents in accomplishing an orderly transition.
Article 8. Miscellaneous.
--------------
8.01 Except as provided in section 8.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by any party
without the written consent of ACCESS or the concerned Fund, as the case may
be; provided, however, that no consent shall be required for any merger of any
of the Funds with, or any sale of all or substantially all the assets of
any of the Funds to, another investment company.
8.02 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
Page 8
8.03 ACCESS may, without further consent on the part of any of the
Funds, subcontract with DST, Inc., a Missouri corporation, or any other
qualified servicer, for the performance of data processing activities;
provided, however, that ACCESS shall be as fully responsible to each of
the Funds for the acts and omissions of DST, Inc. or other qualified
servicer as it is for its own acts and omissions.
8.04 Without the prior approval of the Boards of Trustees of the
Funds, ACCESS shall not, directly or indirectly, provide services,
including services such as transfer agent, dividend disbursing agent or
shareholder service agent, to any investment companies.
8.05 This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof, and supersedes
any prior agreement with respect thereto, whether oral or written, and
this Agreement may not be modified except by written instrument executed
by the affected parties.
8.06 The execution of this Agreement has been authorized by the
Funds' Trustees. This Plan is executed on behalf of the Funds or the
Trustees of the Funds as Trustees and not individually and the
obligations of this Agreement are not binding upon any of the Trustees,
officers or shareholders of the Funds individually but are binding only
upon the assets and property of the Funds. A Certificate of Trust in
respect of each of the Funds is on file with the appropriate state
agency.
8.07 For each of those Funds which have one or more portfolios as
set forth in Schedule "A" hereto, all obligations of those Funds under
this Agreement shall apply only on a portfolio-by-portfolio basis and the
assets of one portfolio shall not be liable for the obligations of any
other.
8.08 In the event of a change in the business or regulatory
environment affecting all or any portion of this Agreement, the parties
hereto agree to renegotiate such affected portions in good faith.
8.09 All questions concerning the validity, meaning and effect of
this Agreement shall be determined in accordance with the laws (without
giving effect to the conflict-of-law principles thereof) of the State of
Delaware applicable to contracts made and to be performed in that state.
8.10 (a) Any dispute, controversy, or claim arising out of or
relating to this Agreement, or the breach, termination or validity
thereof, shall be finally settled by arbitration in accordance with
the Expedited Procedures
Page 9
of the commercial arbitration Rules of the American Arbitration
Association (the "AAA") then in effect (the "Rules"). The
arbitration shall be held in Chicago, Illinois.
(b) There shall be one arbitrator who shall be selected jointly by
the parties. If the parties are unable to agree on an arbitrator
within 15 days after a demand for arbitration is made by a party,
the arbitrator shall be appointed by the AAA in accordance with the
Rules. The hearing shall be held within 90 days of the appointment
of the arbitrator. Notwithstanding the Expedited Procedures
of the Rules, the arbitrator, at his discretion, may schedule
additional days of hearings.
(c) Either party may, without inconsistency with this Agreement,
seek from a court any interim or provisional relief in aid of
arbitration, pending the establishment of the arbitral tribunal.
The parties hereby submit to the exclusive jurisdiction of the
federal and state courts located in the northern district of the
state of Illinois for any such relief in aid of arbitration, or for
any relief relating to arbitration, except for the enforcement of an
arbitral award which may be enforced in any court having
jurisdiction.
(d) Any arbitration proceedings or award rendered hereunder and the
validity, effect and interpretation of Section 8.10 shall be
governed by the Federal Arbitration Act (9 U.S.C. Sections 1 et
--
seq.) The award shall be final and binding upon the parties.
---
Judgment upon any award may be entered in any court having
jurisdiction.
(e) This Agreement and the rights and obligations of the Parties
shall remain in full force and effect pending the award in any
arbitration proceeding hereunder.
Page 10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf and through their duly authorized
officers, as of the date first above written.
EACH OF THE XXX XXXXXX AMERICAN CAPITAL
OPEN END FUNDS LISTED ON SCHEDULE
"A" HERETO
BY: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Vice President
ATTEST:
/s/ Xxxxxxxx Xxxxxxx
- ----------------------------------
Assistant Secretary
ACCESS INVESTOR SERVICES, INC.
BY: /s/ Xxxx X. Xxxxxxxxxx
---------------------------------
President and Chief Executive Officer
ATTEST:
/s/ Xxxx X. Xxxxxxx
- ---------------------------------
Assistant Secretary
Page 11
SCHEDULE "A"
------------
XXX XXXXXX AMERICAN CAPITAL OPEN-END FUNDS
Organization Type
Fund Name State of [Business Trust
(including Portfolios) Organization "T"]
=====================================================================================================
Xxx Xxxxxx American Capital Aggressive Growth Fund DE T
Xxx Xxxxxx American Capital California Insured Tax Free Fund DE T
Xxx Xxxxxx American Capital Xxxxxxxx Fund DE T
Xxx Xxxxxx American Capital Corporate Bond Fund DE T
Xxx Xxxxxx American Capital Emerging Growth Fund DE T
Xxx Xxxxxx American Capital Enterprise Fund DE T
Xxx Xxxxxx American Capital Equity Income Fund DE T
Xxx Xxxxxx American Capital Florida Insured Tax Free Income Fund DE T
Xxx Xxxxxx American Capital Foreign Securities Fund DE T
Xxx Xxxxxx American Capital Global Managed Assets Fund DE T
Xxx Xxxxxx American Capital Government Securities Fund DE T
Xxx Xxxxxx American Capital Government Target Fund DE T
Xxx Xxxxxx American Capital Great American Companies Fund DE T
Xxx Xxxxxx American Capital Growth Fund DE T
Xxx Xxxxxx American Capital Growth and Income Fund DE T
Xxx Xxxxxx American Capital Harbor Fund DE T
Xxx Xxxxxx American Capital High Income Corporate Bond Fund DE T
Xxx Xxxxxx American Capital High Yield Fund DE T
Xxx Xxxxxx American Capital Insured Tax Free Income Fund DE T
Xxx Xxxxxx American Capital Intermediate Term Municipal Income Fund DE T
Page 12
Organization Type
Fund Name State of [Business Trust
(including Portfolios) Organization "T"]
=====================================================================================================
Xxx Xxxxxx American Capital Life Investment Trust DE T
Asset Allocation Portfolio
Domestic Income Portfolio
Emerging Growth Portfolio
Enterprise Portfolio
Global Equity Portfolio
Government Portfolio
Growth and Income Portfolio
Money Market Portfolio
Xxxxxx Xxxxxxx Real Estate Securities Portfolio
Strategic Stock Portfolio
Xxx Xxxxxx American Capital Limited Maturity Government Fund DE T
Xxx Xxxxxx American Capital Municipal Income Fund DE T
Xxx Xxxxxx American Capital New Jersey Tax Free Income Fund DE T
Xxx Xxxxxx American Capital New York Tax Free Income Fund DE T
Xxx Xxxxxx American Capital Pace Fund DE T
Xxx Xxxxxx American Capital Pennsylvania Tax Free Income Fund PA T
Xxx Xxxxxx American Capital Prospector Fund DE T
Xxx Xxxxxx American Capital Real Estate Securities Fund DE T
Xxx Xxxxxx American Capital Reserve Fund DE T
Xxx Xxxxxx American Capital Short-Term Global Income Fund DE T
Xxx Xxxxxx American Capital Small Capitalization Fund DE T
Xxx Xxxxxx American Capital Strategic Income Fund DE T
Xxx Xxxxxx American Capital Tax-Exempt Trust DE T
Xxx Xxxxxx American Capital High Yield Municipal Fund
Xxx Xxxxxx American Capital Tax Free High Income Fund DE T
Xxx Xxxxxx American Capital Tax Free Money Fund DE T
Xxx Xxxxxx American Capital U.S. Government Fund DE T
Xxx Xxxxxx American Capital U.S. Government Trust for Income DE T
Xxx Xxxxxx American Capital Utility Fund DE T
Xxx Xxxxxx American Capital Value Fund DE T
Page 13
Organization Type
Fund Name State of [Business Trust
(including Portfolios) Organization "T"]
=====================================================================================================
Xxx Xxxxxx American Capital World Portfolio Series Trust DE T
Xxx Xxxxxx American Capital Global Equity Fund
Xxx Xxxxxx American Capital Global Government Securities
Fund
Page 14
EXHIBIT 10.2
FUND ACCOUNTING AGREEMENT
THIS AGREEMENT, dated May 31, 1997, by and between the parties set
forth in Schedule A hereto (designated collectively hereafter as the "Funds")
and XXX XXXXXX AMERICAN CAPITAL INVESTMENT ADVISORY CORP., a Delaware
corporation ("Advisory Corp.").
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, Advisory Corp. has the capability of providing certain
accounting services to the Funds; and
WHEREAS, each desires to utilized Advisory Corp. in the provision of
such accounting services; and
WHEREAS, Advisory Corp. intends to maintain 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 Advisory Corp. As agent, Advisory Corp. shall provide each of
the Funds the accounting services ("Accounting Services") as set forth in
Paragraph 2 of this Agreement. Advisory Corp. accepts such appointment and
agrees to furnish the Accounting Services in return for the compensation
provided in Paragraph 3 of this Agreement.
2. Accounting Services to be Provided. Advisory Corp. will provide to each
respective Fund accounting related services in connection with the maintenance
of the financial records of such Fund, including without limitation: (i)
maintenance of the general ledger and other financial books and records; (ii)
processing of portfolio transactions; (iii) coordination of the valuation of
portfolio securities; (iv) calculation of the Fund's net asset value; (v)
coordination of financial and regulatory reporting; (vi) preparation of
financial reports for each Fund's Board of Trustees; (vii) coordination of tax
and financial compliance issues; (viii) the establishment and maintenance of
accounting policies; (ix) recommendations with respect to dividend policies; (x)
preparation of each Fund's financial reports and other accounting and tax
related notice information to shareholders; and (xi) the assimilation and
interpretation of accounting data for meaningful management review. Advisory
Corp. shall provide accurate maintenance of each Fund's financial books and
records as required by the applicable securities statutes and regulations, and
shall hire persons (collectively the "Accounting Service Group") as needed to
provide such Accounting Services.
3. Expenses and Reimbursements. Advisory Corp. shall be reimbursed by the Funds
for all costs and services incurred in connection with the provision of the
aforementioned Accounting Services ("Accounting Service Expenses"), including
but not limited to all salary and related benefits paid to the personnel of the
Accounting Service Group, overhead and expenses related to office space and
related equipment and out-of-pocket expenses.
The Accounting Services Expenses will be paid by Advisory Corp. and
reimbursed by the Funds. Advisory Corp. will tender to each Fund a monthly
invoice as of the last business day of each month which shall certify the total
support service expenses expended. Except as provided herein, Advisory
1
Corp. will receive no other compensation in connection with Accounting Services
rendered in accordance with this Agreement.
4. Payment for Accounting Service Expenses Among the Funds. As to one quarter
(25%) of the Accounting Service Expenses incurred under the Agreement, the
expense shall be allocated between all Funds based on the number of classes of
shares of beneficial interest that each respective Fund has issued. As to the
remaining three quarters (75%) of the Accounting Service Expenses incurred under
the Agreement, the expense shall be allocated between all Funds based on their
relative net assets. For purposes of determining the percentage of expenses to
be allocated to any Fund, the liquidation preference of any preferred shares
issued by any such Fund shall not be considered a liability of such Fund for the
purposes of calculating relative net assets of such Fund.
5. Maintenance of Records. All records maintained by Advisory Corp. in
connection with the performance of its duties under this Agreement will remain
the property of each respective Fund and will be preserved by Advisory Corp. 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 Advisory Corp. Advisory Corp. 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 gross negligence or misconduct on the part of Advisory
Corp., its agents or contractors.
7. Indemnification By Funds. Each Fund will indemnify and hold Advisory Corp.
harmless from all lost, cost, damage and expense, including reasonable expenses
for legal counsel, incurred by Advisory Corp. resulting from: (a) any claim,
demand, action or suit in connection with Advisory Corp.'s acceptance of this
Agreement; (b) any action or omission by Advisory Corp. in the performance of
its duties hereunder; (c) Advisory Corp.'s acting upon instructions believed by
it to have been executed by a duly authorized officer of the Fund; or (d)
Advisory Corp.'s acting upon information provided by the Fund in form and under
policies agreed to by Advisory Corp. and the Fund. Advisory Corp. shall not be
entitled to such indemnification in respect of actions or omissions constituting
gross negligence or willful misconduct of Advisory Corp. or its agents or
contractors. Prior to confessing any claim against it which may be subject to
this indemnification, Advisory Corp. shall give the Fund reasonable opportunity
to defend against said claim in its own name or in the name of Advisory Corp.
8. Indemnification By Advisory Corp. Advisory Corp. 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 Advisory Corp.'s failure to comply with
the terms of this Agreement or which arises out of the gross negligence or
willful misconduct of Advisory Corp. 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 Advisory Corp. 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 are 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 Advisory
Corp. (including Advisory Corp.'s 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
2
effect through May, 1998, 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. This
Agreement may be modified or amended from time to time by mutual agreement
between the parties hereto and may be terminated after May, 1998, by at least
sixty (60) days' written notice given by one party to the others. Upon
termination hereof, each Fund shall pay to Advisory Corp. such compensation as
may be due as of the date of such termination and shall likewise reimburse
Advisory Corp. 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 with
Advisory Corp., any subsidiary or affiliate serves as investment advisor or
distributor if such amendment is approved by the President of each Fund.
12. Assignment. Any interest of Advisory Corp. 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 Funds. This Agreement
shall automatically and immediately terminate in the event of its assignment
without the prior written consent of the Funds.
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 Fund is Xxx Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx,
Xxxxxxxx 00000, Attention: President and that of Advisory Corp. for this purpose
is Xxx Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000, Attention: President.
14. Personal Liability. As provided for in the Agreement and Declaration of
Trust of the various Funds, under which the Funds are organized as
unincorporated trusts, the shareholders, trustees, officers, employees and other
agents of the Fund shall not personally be found by or liable for the matters
set forth hereto, 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, Advisory Corp. 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 joint 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 this 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 or effect.
3
IN WITNESS WHEREOF, the parties have caused this amended and restated
Agreement to be executed as of the day and year first above written.
ALL OF THE PARTIES SET FORTH IN SCHEDULE A
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx, Vice President
XXX XXXXXX AMERICAN CAPITAL INVESTMENT ADVISORY CORP.
By: /s/ Xxxxxx X. XxXxxxxxx
---------------------------------------------
Xxxxxx X. XxXxxxxxx, President
4
SCHEDULE A
I. FUNDS ADVISED BY XXX XXXXXX AMERICAN CAPITAL INVESTMENT ADVISORY CORP.
("INVESTMENT ADVISORY CORP.") (COLLECTIVELY, THE "FORMER XXX XXXXXX FUNDS"):
CLOSED END FUNDS
Xxx Xxxxxx American Capital Municipal Income Trust
Xxx Xxxxxx American Capital California Municipal Trust
Xxx Xxxxxx American Capital High Income Trust
Xxx Xxxxxx American Capital High Income Trust II
Xxx Xxxxxx American Capital Investment Grade Municipal Trust
Xxx Xxxxxx American Capital Municipal Trust
Xxx Xxxxxx American Capital California Quality Municipal Trust
Xxx Xxxxxx American Capital Florida Quality Municipal Trust
Xxx Xxxxxx American Capital New York Quality Municipal Trust
Xxx Xxxxxx American Capital Ohio Quality Municipal Trust
Xxx Xxxxxx American Capital Pennsylvania Quality Municipal Trust
Xxx Xxxxxx American Capital Trust For Insured Municipals
Xxx Xxxxxx American Capital Trust For Investment Grade Municipals
Xxx Xxxxxx American Capital Trust For Investment Grade California Municipals
Xxx Xxxxxx American Capital Trust For Investment Grade Florida Municipals
Xxx Xxxxxx American Capital Trust For Investment Grade New Jersey Municipals
Xxx Xxxxxx American Capital Trust For Investment Grade New York Municipals
Xxx Xxxxxx American Capital Trust For Investment Grade Pennsylvania Municipals
Xxx Xxxxxx American Capital Municipal Opportunity Trust
Xxx Xxxxxx American Capital Advantage Municipal Income Trust
Xxx Xxxxxx American Capital Advantage Pennsylvania Municipal Income Trust
Xxx Xxxxxx American Capital Strategic Sector Municipal Trust
Xxx Xxxxxx American Capital Value Municipal Income Trust
Xxx Xxxxxx American Capital California Value Municipal Income Trust
Xxx Xxxxxx American Capital Massachusetts Value Municipal Income Trust
Xxx Xxxxxx American Capital New Jersey Value Municipal Income Trust
Xxx Xxxxxx American Capital New York Value Municipal Income Trust
Xxx Xxxxxx American Capital Ohio Value Municipal Income Trust
Xxx Xxxxxx American Capital Pennsylvania Value Municipal Income Trust
Xxx Xxxxxx American Capital Municipal Opportunity Trust II
Xxx Xxxxxx American Capital Florida Municipal Opportunity Trust
Xxx Xxxxxx American Capital Advantage Municipal Income Trust II
Xxx Xxxxxx American Capital Select Sector Municipal Trust
INSTITUTIONAL FUNDS
II. FUNDS ADVISED BY XXX XXXXXX AMERICAN CAPITAL MANAGEMENT, INC. ("MANAGEMENT,
INC.") (COLLECTIVELY, THE "FORMER XXX XXXXXX FUNDS"):
The Explorer Institutional Trust
on behalf of its series
Explorer Institutional Active Core Fund
Explorer Institutional Limited Duration Fund
5
OPEN END FUNDS
III. FUNDS ADVISED BY XXX XXXXXX AMERICAN CAPITAL ASSET MANAGEMENT, INC. ("ASSET
MANAGEMENT, INC.") (COLLECTIVELY, THE "FORMER AMERICAN CAPITAL FUNDS"):
Xxx Xxxxxx American Capital Xxxxxxxx Fund ("Xxxxxxxx Fund")
Xxx Xxxxxx American Capital Corporate Bond Fund ("Corporate Bond Fund")
Xxx Xxxxxx American Capital Emerging Growth Fund ("Emerging Growth Fund")
Xxx Xxxxxx American Capital Enterprise Fund ("Enterprise Fund")
Xxx Xxxxxx American Capital Equity Income Fund ("Equity Income Fund")
Xxx Xxxxxx American Capital Global Managed Assets Fund ("Global Managed Assets
Funds")
Xxx Xxxxxx American Capital Government Securities Fund ("Government Securities
Fund")
Xxx Xxxxxx American Capital Government Target Fund ("Government Target Fund")
Xxx Xxxxxx American Capital Growth and Income Fund ("Growth and Income Fund")
Xxx Xxxxxx American Capital Harbor Fund ("Harbor Fund")
Xxx Xxxxxx American Capital High Income Corporate Bond Fund ("High Income
Corporate Bond Fund")
Xxx Xxxxxx American Capital Life Investment Trust ("Life Investment Trust"
or "LIT") on behalf of its Series
Enterprise Portfolio ("LIT Enterprise Portfolio")
Domestic Income Portfolio ("LIT Domestic Income Portfolio")
Emerging Growth Portfolio ("LIT Emerging Growth Portfolio")
Government Portfolio ("LIT Government Portfolio")
Asset Allocation Portfolio ("LIT Asset Allocation Portfolio")
Money Market Portfolio ("LIT Money Market Portfolio")
Real Estate Securities Portfolio ("LIT Real Estate Securities Portfolio")
Growth and Income Portfolio ("LIT Growth and Income Portfolio")
Xxx Xxxxxx American Capital Limited Maturity Government Fund ("Limited Maturity
Government Fund")
Xxx Xxxxxx American Capital Pace Fund ("Pace Fund")
Xxx Xxxxxx American Capital Real Estate Securities Fund ("Real Estate
Securities Fund")
Xxx Xxxxxx American Capital Reserve Fund ("Reserve Fund")
Xxx Xxxxxx American Capital Small Capitalization Fund ("Small Capitalization
Fund")
Xxx Xxxxxx American Capital Tax-Exempt Trust ("Tax-Exempt Trust")
on behalf of its Series
Xxx Xxxxxx American Capital High Yield Municipal Fund ("High Yield Municipal
Fund")
Xxx Xxxxxx American Capital U.S. Government Trust for Income ("U.S. Government
Trust for Income")
6
IV. FUNDS ADVISED BY XXX XXXXXX AMERICAN CAPITAL INVESTMENT ADVISORY CORP.
("INVESTMENT ADVISORY CORP.") (COLLECTIVELY, THE "FORMER XXX XXXXXX FUNDS"):
Xxx Xxxxxx American Capital U.S. Government Trust ("U.S. Government Trust")
on behalf of its series
Xxx Xxxxxx American Capital U.S. Government Fund ("U.S. Government Fund")
Xxx Xxxxxx American Capital Tax Free Trust ("Tax Free Trust")
on behalf of its series
Xxx Xxxxxx American Capital Insured Tax Free Income Fund ("Insured Tax Free
Income Fund")
Xxx Xxxxxx American Capital Tax Free High Income Fund ("Tax Free High Income
Fund")
Xxx Xxxxxx American Capital California Insured Tax Free Fund ("California
Insured Tax Free Fund")
Xxx Xxxxxx American Capital Municipal Income Fund ("Municipal Income Fund")
Xxx Xxxxxx American Capital Intermediate Term Municipal Income Fund
(Intermediate Term Municipal Income Fund")
Xxx Xxxxxx American Capital Florida Insured Tax Free Income Fund ("Florida
Insured Tax Free Income Fund")
Xxx Xxxxxx American Capital New Jersey Tax Free Income Fund ("New Jersey Tax
Free Income Fund")
Xxx Xxxxxx American Capital New York Tax Free Income Fund ("New York Tax Free
Income Fund")
Xxx Xxxxxx American Capital California Tax Free Income Fund ("California Tax
Free Income Fund")
Xxx Xxxxxx American Capital Michigan Tax Free Income Fund ("Michigan Tax Free
Income Fund")
Xxx Xxxxxx American Capital Missouri Tax Free Income Fund ("Missouri Tax Free
Income Fund")
Xxx Xxxxxx American Capital Ohio Tax Free Income Fund ("Ohio Tax Free Income
Fund")
Xxx Xxxxxx American Capital Trust ("VKAC Trust")
Xxx Xxxxxx American Capital High Yield Fund ("High Yield Fund")
Xxx Xxxxxx American Capital Short-Term Global Income Fund ("Short-Term Global
Income Fund")
Xxx Xxxxxx American Capital Strategic Income Fund ("Strategic Income Fund")
Xxx Xxxxxx American Capital Equity Trust ("Equity Trust")
on behalf of its series
Xxx Xxxxxx American Capital Utility Fund ("Utility Fund")
Xxx Xxxxxx American Capital Growth Fund ("Growth Fund")
Xxx Xxxxxx American Capital Value Fund ("Value Fund")
Xxx Xxxxxx American Capital Great American Companies Fund ("Great American
Companies Fund")
Xxx Xxxxxx American Capital Prospector Fund ("Prospector Fund")
Xxx Xxxxxx American Capital Aggressive Growth Fund ("Aggressive Growth Fund")
Xxx Xxxxxx American Capital Foreign Securities Fund ("Foreign Securities Fund")
Xxx Xxxxxx American Capital Pennsylvania Tax Free Income Fund ("Pennsylvania
Tax Free Income Fund")
Xxx Xxxxxx American Capital Tax Free Money Fund ("Tax Free Money Fund")
7
EXHIBIT 10.2.1
AMENDMENT NUMBER SIX
TO THE
FUND ACCOUNTING AGREEMENT
THIS AMENDMENT NUMBER SIX, dated May 31, 2000, to the Fund Accounting
Agreement dated May 31, 1997 (the "Agreement") by and between the parties set
forth in Schedule A, attached hereto and incorporated by reference and Xxx
Xxxxxx Investment Advisory Corp., a Delaware corporation ("Advisory Corp.").
W I T N E S S E T H
WHEREAS, the Funds wish to amend the current Fund Accounting Agreement
in accordance with the terms set forth by the Boards of Trustees/Directors of
the Xxx Xxxxxx Open End Funds at a Meeting held on April 17, 2000 and the Boards
of Trustees of the Xxx Xxxxxx Closed End Funds at a Meeting held on May 30,
2000;
NOW, THEREFORE, in consideration of the promises and mutual covenants
spelled out in the Agreement and herein, it is hereby agreed that the Agreement
be amended to add Section 13 and renumber the remaining Sections of the
Agreement as follows:
13. Delegation of Accounting Services. Advisory Corp. may delegate the
provision of all or a portion of the Advisory Services contemplated
herein to such other parties as may be approved by the Board of each
Fund. In the event of any such delegation, the Funds shall reimburse
Advisory Corp. for expense related to those Accounting Services
provided by Advisory Corp., and shall pay such sub-accounting agents
such compensation as may be agreed from time to time by the Funds and
the sub-accounting agent. In the event of such delegation, Advisory
Corp. shall oversee the activities of such sub-accounting agent on
behalf of the Funds.
14. 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 Fund is Xxx Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000,
Attention: President and that of Advisory Corp. for this purpose is Xxx
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000, Attention: President.
15. Personal Liability. As provided for in the Agreement and
Declaration of Trust of the various Funds, under which the Funds are
organized as unincorporated trusts, the shareholders, trustees,
officers, employees and other agents of the Fund shall not personally
be found by or liable for the matters set forth hereto, nor shall
resort be had to their private property for the satisfaction of any
obligation or claim hereunder.
1
16. Interpretative Provisions. In connection with the operation of this
Agreement, Advisory Corp. 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 joint opinion be consistent with the
general tenor of this Agreement.
17. State Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Illinois.
18. Captions. The captions in this 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 or effect.
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 A
By: /s/ X. Xxxxxx Xxxxx XXX
----------------------------------
X. Xxxxxx Xxxxx XXX
Vice President and Secretary
XXX XXXXXX INVESTMENT ADVISORY CORP.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxx
Senior Vice President
2
SCHEDULE A
I. FUNDS ADVISED BY XXX XXXXXX INVESTMENT ADVISORY CORP. ("INVESTMENT
ADVISORY CORP.") (COLLECTIVELY, THE "INVESTMENT ADVISORY CORP. FUNDS")
CLOSED END FUNDS
Xxx Xxxxxx Municipal Income Trust
Xxx Xxxxxx California Municipal Trust
Xxx Xxxxxx High Income Trust
Xxx Xxxxxx High Income Trust II
Xxx Xxxxxx Investment Grade Municipal Trust
Xxx Xxxxxx Municipal Trust
Xxx Xxxxxx California Quality Municipal Trust
Xxx Xxxxxx Florida Quality Municipal Trust
Xxx Xxxxxx New York Quality Municipal Trust
Xxx Xxxxxx Ohio Quality Municipal Trust
Xxx Xxxxxx Pennsylvania Quality Municipal Trust
Xxx Xxxxxx Trust For Insured Municipals
Xxx Xxxxxx Trust For Investment Grade Municipals
Xxx Xxxxxx Trust For Investment Grade California Municipals
Xxx Xxxxxx Trust For Investment Grade Florida Municipals
Xxx Xxxxxx Trust For Investment Grade New Jersey Municipals
Xxx Xxxxxx Trust For Investment Grade New York Municipals
Xxx Xxxxxx Trust For Investment Grade Pennsylvania Municipals
Xxx Xxxxxx Municipal Opportunity Trust
Xxx Xxxxxx Advantage Municipal Income Trust
Xxx Xxxxxx Advantage Pennsylvania Municipal Income Trust
Xxx Xxxxxx Strategic Sector Municipal Trust
Xxx Xxxxxx Value Municipal Income Trust
Xxx Xxxxxx California Value Municipal Income Trust
Xxx Xxxxxx Massachusetts Value Municipal Income Trust
Xxx Xxxxxx New Jersey Value Municipal Income Trust
Xxx Xxxxxx New York Value Municipal Income Trust
Xxx Xxxxxx Ohio Value Municipal Income Trust
Xxx Xxxxxx Pennsylvania Value Municipal Income Trust
Xxx Xxxxxx Municipal Opportunity Trust II
Xxx Xxxxxx Florida Municipal Opportunity Trust
Xxx Xxxxxx Advantage Municipal Income Trust II
Xxx Xxxxxx Select Sector Municipal Trust
OPEN END FUNDS
Xxx Xxxxxx U.S. Government Trust ("U.S. Government Trust")
on behalf of its series
Xxx Xxxxxx U.S. Government Fund ("U.S. Government Fund")
Xxx Xxxxxx Tax Free Trust ("Tax Free Trust")
on behalf of its series
Xxx Xxxxxx Insured Tax Free Income Fund ("Insured Tax Free Income
Fund")
Xxx Xxxxxx Tax Free High Income Fund ("Tax Free High Income Fund")
Xxx Xxxxxx California Insured Tax Free Fund ("California Insured Tax
Free Fund")
Xxx Xxxxxx Municipal Income Fund ("Municipal Income Fund")
Xxx Xxxxxx Intermediate Term Municipal Income Fund (Intermediate Term
Municipal Income Fund")
Xxx Xxxxxx Florida Insured Tax Free Income Fund ("Florida Insured Tax
Free Income Fund")
Xxx Xxxxxx New York Tax Free Income Fund ("New York Tax Free Income
Fund")
Xxx Xxxxxx California Municipal Income Fund ("California Municipal
Income Fund")
3
Xxx Xxxxxx Michigan Tax Free Income Fund ("Michigan Tax Free Income
Fund")
Xxx Xxxxxx Missouri Tax Free Income Fund ("Missouri Tax Free Income
Fund")
Xxx Xxxxxx Ohio Tax Free Income Fund ("Ohio Tax Free Income Fund")
Xxx Xxxxxx Trust ("VK Trust")
on behalf of its series
Xxx Xxxxxx High Yield Fund ("High Yield Fund")
Xxx Xxxxxx Strategic Income Fund ("Strategic Income Fund")
Xxx Xxxxxx Managed Short Term Income Fun d ("Managed Short Term
Income Fund")
Xxx Xxxxxx Equity Trust ("Equity Trust")
on behalf of its series
Xxx Xxxxxx Utility Fund ("Utility Fund")
Xxx Xxxxxx Growth Fund ("Growth Fund")
Xxx Xxxxxx Aggressive Growth Fund ("Aggressive Growth Fund")
Xxx Xxxxxx Small Cap Value Fund ("Small Cap Value Fund")
Xxx Xxxxxx Small Company Growth Fund ("Small Company Growth Fund")
Xxx Xxxxxx Select Growth Fund ("Select Growth Fund")
Xxx Xxxxxx Small Cap Growth Fund ("Small Cap Growth Fund")
Xxx Xxxxxx Equity Trust II ("Equity Trust II")
on behalf of its Series
Xxx Xxxxxx Tax Managed Equity Growth Fund
Xxx Xxxxxx Pennsylvania Tax Free Income Fund ("Pennsylvania Tax Free
Income Fund")
Xxx Xxxxxx Tax Free Money Fund ("Tax Free Money Fund")
II. FUNDS ADVISED BY XXX XXXXXX ASSET MANAGEMENT INC. (COLLECTIVELY, THE
"ASSET MANAGEMENT FUNDS")
Xxx Xxxxxx Xxxxxxxx Fund ("Xxxxxxxx Fund")
Xxx Xxxxxx Corporate Bond Fund ("Corporate Bond Fund")
Xxx Xxxxxx Emerging Growth Fund ("Emerging Growth Fund")
Xxx Xxxxxx Enterprise Fund ("Enterprise Fund")
Xxx Xxxxxx Equity Income Fund ("Equity Income Fund")
Xxx Xxxxxx Global Managed Assets Fund ("Global Managed Assets Funds")
Xxx Xxxxxx Government Securities Fund ("Government Securities Fund")
Xxx Xxxxxx Growth and Income Fund ("Growth and Income Fund")
Xxx Xxxxxx Harbor Fund ("Harbor Fund")
Xxx Xxxxxx High Income Corporate Bond Fund ("High Income Corporate Bond
Fund")
Xxx Xxxxxx Life Investment Trust ("Life Investment Trust" or "LIT")
on behalf of its Series
Enterprise Portfolio ("LIT Enterprise Portfolio")
Domestic Income Portfolio ("LIT Domestic Income Portfolio")
Emerging Growth Portfolio ("LIT Emerging Growth Portfolio")
Global Equity Portfolio ("LIT Global Equity Portfolio")
Government Portfolio ("LIT Government Portfolio")
Asset Allocation Portfolio ("LIT Asset Allocation Portfolio")
Money Market Portfolio ("LIT Money Market Portfolio")
Xxxxxx Xxxxxxx Real Estate Securities Portfolio ("LIT Xxxxxx Xxxxxxx
Real Estate Securities Portfolio")
Growth and Income Portfolio ("LIT Growth and Income Portfolio")
Strategic Stock Portfolio ("LIT Strategic Stock Portfolio")
Xxxxxxxx Portfolio ("LIT Xxxxxxxx Portfolio")
4
Xxx Xxxxxx Limited Maturity Government Fund ("Limited Maturity
Government Fund")
Xxx Xxxxxx Xxxx Fund ("Pace Fund")
Xxx Xxxxxx Real Estate Securities Fund ("Real Estate Securities Fund")
Xxx Xxxxxx Reserve Fund ("Reserve Fund")
Xxx Xxxxxx Tax-Exempt Trust ("Tax-Exempt Trust")
on behalf of its Series
Xxx Xxxxxx High Yield Municipal Fund ("High Yield Municipal Fund")
Xxx Xxxxxx Equity Trust II ("Equity Trust II")
on behalf of its Series
Xxx Xxxxxx Technology Fund
Xxx Xxxxxx U.S. Government Trust for Income ("U.S. Government Trust for
Income")
5
AMENDMENT NUMBER TEN
TO THE
FUND ACCOUNTING AGREEMENT
THIS AMENDMENT NUMBER TEN, dated February 28, 2003, to the Fund
Accounting Agreement dated May 31, 1997 (the "Agreement") by and between the
parties set forth in Schedule A, attached hereto and incorporated by reference
and Xxx Xxxxxx Investment Advisory Corp., a Delaware corporation ("Advisory
Corp.").
W I T N E S S E T H
WHEREAS, the following party, being an open-end management investment
company as that term is defined in the Investment Company Act of 1940, as
amended, wishes to become a party to the Agreement:
Xxx Xxxxxx Series Fund, Inc.
on behalf of its series
Xxx Xxxxxx American Value Fund
Xxx Xxxxxx Asian Equity Fund
Xxx Xxxxxx Emerging Markets Debt Fund
Xxx Xxxxxx Emerging Markets Fund
Xxx Xxxxxx Equity Growth Fund
Xxx Xxxxxx European Value Equity Fund
Xxx Xxxxxx Focus Equity Fund
Xxx Xxxxxx Global Equity Allocation Fund
Xxx Xxxxxx Global Franchise Fund
Xxx Xxxxxx Global Value Equity Fund
Xxx Xxxxxx Growth and Income Fund II
Xxx Xxxxxx International Magnum Fund
Xxx Xxxxxx Japanese Equity Fund
Xxx Xxxxxx Latin American Fund
Xxx Xxxxxx Mid Cap Growth Fund
Xxx Xxxxxx Value Fund
Xxx Xxxxxx Worldwide High Income Fund
WHEREAS, the original parties desire to add the aforementioned
additional entity as a party to the Agreement;
NOW, THEREFORE, in consideration of the promises and mutual covenants
spelled out in the Agreement and herein, it is hereby agreed that Schedule A of
the Agreement be amended to add the party mentioned above as party to the
Agreement.
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 A
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------------------
Xxxx X. Xxxxxxxx
Vice President, Chief Financial Officer and Treasurer
XXX XXXXXX INVESTMENT ADVISORY CORP.
By: /s/ Xxxxxx X. Xxxx XXX
-----------------------------------------------------
Xxxxxx X. Xxxx III
Executive Director
2
SCHEDULE A
CLOSED END FUNDS
I. CLOSED-END FUNDS ADVISED BY XXX XXXXXX INVESTMENT ADVISORY CORP.
("INVESTMENT ADVISORY CORP.")
Xxx Xxxxxx Municipal Income Trust
Xxx Xxxxxx California Municipal Trust
Xxx Xxxxxx High Income Trust
Xxx Xxxxxx High Income Trust II
Xxx Xxxxxx Investment Grade Municipal Trust
Xxx Xxxxxx Municipal Trust
Xxx Xxxxxx California Quality Municipal Trust
Xxx Xxxxxx Florida Quality Municipal Trust
Xxx Xxxxxx New York Quality Municipal Trust
Xxx Xxxxxx Ohio Quality Municipal Trust
Xxx Xxxxxx Pennsylvania Quality Municipal Trust
Xxx Xxxxxx Trust For Insured Municipals
Xxx Xxxxxx Trust For Investment Grade Municipals
Xxx Xxxxxx Trust For Investment Grade California Municipals
Xxx Xxxxxx Trust For Investment Grade Florida Municipals
Xxx Xxxxxx Trust For Investment Grade New Jersey Municipals
Xxx Xxxxxx Trust For Investment Grade New York Municipals
Xxx Xxxxxx Trust For Investment Grade Pennsylvania Municipals
Xxx Xxxxxx Municipal Opportunity Trust
Xxx Xxxxxx Advantage Municipal Income Trust
Xxx Xxxxxx Advantage Pennsylvania Municipal Income Trust
Xxx Xxxxxx Strategic Sector Municipal Trust
Xxx Xxxxxx Value Municipal Income Trust
Xxx Xxxxxx California Value Municipal Income Trust
Xxx Xxxxxx Massachusetts Value Municipal Income Trust
Xxx Xxxxxx New York Value Municipal Income Trust
Xxx Xxxxxx Ohio Value Municipal Income Trust
Xxx Xxxxxx Pennsylvania Value Municipal Income Trust
Xxx Xxxxxx Municipal Opportunity Trust II
Xxx Xxxxxx Advantage Municipal Income Trust II
Xxx Xxxxxx Select Sector Municipal Trust
II. CLOSED-END FUNDS ADVISED BY XXX XXXXXX ASSET MANAGEMENT INC. ("ASSET
MANAGEMENT")
Xxx Xxxxxx Income Trust
Xxx Xxxxxx Bond Fund
3
OPEN END FUNDS
I. OPEN-END FUNDS ADVISED BY ASSET MANAGEMENT
Xxx Xxxxxx Exchange Fund ("Exchange Fund")
Xxx Xxxxxx Xxxxxxxx Fund ("Xxxxxxxx Fund")
Xxx Xxxxxx Corporate Bond Fund ("Corporate Bond Fund")
Xxx Xxxxxx Emerging Growth Fund ("Emerging Growth Fund")
Xxx Xxxxxx Enterprise Fund ("Enterprise Fund")
Xxx Xxxxxx Equity and Income Fund ("Equity Income Fund")
Xxx Xxxxxx Government Securities Fund ("Government Securities Fund")
Xxx Xxxxxx Growth and Income Fund ("Growth and Income Fund")
Xxx Xxxxxx Harbor Fund ("Harbor Fund")
Xxx Xxxxxx High Income Corporate Bond Fund ("High Income Corporate Bond Fund")
Xxx Xxxxxx Life Investment Trust ("Life Investment Trust" or "LIT")
on behalf of its Series
Aggressive Growth Portfolio ("LIT Aggressive Growth Portfolio")
Xxxxxxxx Portfolio ("LIT Xxxxxxxx Portfolio")
Emerging Growth Portfolio ("LIT Emerging Growth Portfolio")
Enterprise Portfolio ("LIT Enterprise Portfolio")
Government Portfolio ("LIT Government Portfolio")
Growth and Income Portfolio ("LIT Growth and Income Portfolio")
Money Market Portfolio ("LIT Money Market Portfolio")
Xxx Xxxxxx Limited Maturity Government Fund ("Limited Maturity Government Fund")
Xxx Xxxxxx Xxxx Fund ("Pace Fund")
Xxx Xxxxxx Real Estate Securities Fund ("Real Estate Securities Fund")
Xxx Xxxxxx Reserve Fund ("Reserve Fund")
Xxx Xxxxxx Tax-Exempt Trust ("Tax-Exempt Trust")
on behalf of its Series
Xxx Xxxxxx High Yield Municipal Fund ("High Yield Municipal Fund")
Xxx Xxxxxx Equity Trust II ("Equity Trust II")
on behalf of its Series
Xxx Xxxxxx Technology Fund
Xxx Xxxxxx International Advantage Fund
Xxx Xxxxxx Equity Trust ("Equity Trust")
on behalf of its series
Xxx Xxxxxx Value Opportunities Fund ("Value Opportunities Fund")
4
II. OPEN-END FUNDS ADVISED BY INVESTMENT ADVISORY CORP.:
Xxx Xxxxxx U.S. Government Trust ("U.S. Government Trust")
on behalf of its series
Xxx Xxxxxx U.S. Government Fund ("U.S. Government Fund")
Xxx Xxxxxx Tax Free Trust ("Tax Free Trust")
on behalf of its series
Xxx Xxxxxx California Insured Tax Free Fund ("California Insured Tax Free
Fund")
Xxx Xxxxxx Insured Tax Free Income Fund ("Insured Tax Free Income Fund")
Xxx Xxxxxx Intermediate Term Municipal Income Fund (Intermediate Term
Municipal Income Fund")
Xxx Xxxxxx Municipal Income Fund ("Municipal Income Fund")
Xxx Xxxxxx New York Tax Free Income Fund ("New York Tax Free Income Fund")
Xxx Xxxxxx Strategic Municipal Income Fund ("Strategic Municipal Income
Fund")
Xxx Xxxxxx California Municipal Income Fund**
Xxx Xxxxxx American Capital Michigan Tax Free Income Fund**
Xxx Xxxxxx American Capital Missouri Tax Free Income Fund**
Xxx Xxxxxx American Capital Ohio Tax Free Income Fund**
Xxx Xxxxxx Trust ("VK Trust")
on behalf of its series
Xxx Xxxxxx High Yield Fund ("High Yield Fund")
Xxx Xxxxxx Managed Short-Term Income Fund**
Xxx Xxxxxx Equity Trust ("Equity Trust")
on behalf of its series
Xxx Xxxxxx Utility Fund ("Utility Fund")
Xxx Xxxxxx Growth Fund ("Growth Fund")
Xxx Xxxxxx Aggressive Growth Fund ("Aggressive Growth Fund")
Xxx Xxxxxx Small Cap Value Fund ("Small Cap Value Fund")
Xxx Xxxxxx Select Growth Fund ("Select Growth Fund")
Xxx Xxxxxx Small Cap Growth Fund ("Small Cap Growth Fund")
Xxx Xxxxxx Small Company Growth Fund**
Xxx Xxxxxx Equity Trust II ("Equity Trust II")
on behalf of its series
Xxx Xxxxxx Tax Managed Equity Growth Fund
Xxx Xxxxxx Pennsylvania Tax Free Income Fund ("Pennsylvania Tax Free Income
Fund")
Xxx Xxxxxx Tax Free Money Fund ("Tax Free Money Fund")
Xxx Xxxxxx Series Fund, Inc.
on behalf of its series
Xxx Xxxxxx American Value Fund ("American Value Fund")
Xxx Xxxxxx Asian Equity Fund ("Asian Equity Fund")
Xxx Xxxxxx Emerging Markets Debt Fund**
Xxx Xxxxxx Emerging Markets Fund ("Emerging Markets Fund")
Xxx Xxxxxx Equity Growth Fund ("Equity Growth Fund")
Xxx Xxxxxx European Value Equity Fund ("European Value Equity Fund")
Xxx Xxxxxx Focus Equity Fund ("Focus Equity Fund")
Xxx Xxxxxx Global Equity Allocation Fund ("Global Equity Allocation Fund")
Xxx Xxxxxx Global Franchise Fund ("Global Franchise Fund")
Xxx Xxxxxx Global Value Equity Fund ("Global Value Equity Fund")
Xxx Xxxxxx Growth and Income Fund II**
Xxx Xxxxxx International Magnum Fund ("International Magnum Fund")
5
Xxx Xxxxxx Japanese Equity Fund**
Xxx Xxxxxx Latin American Fund ("Latin American Fund")
Xxx Xxxxxx Mid-Cap Growth Fund ("Mid Cap Growth Fund")
Xxx Xxxxxx Value Fund ("Value Fund")
Xxx Xxxxxx Worldwide High Income Fund ("Worldwide High Income Fund")
**This Fund does not have investment operations as of the date first set forth
above.
6
EXHIBIT 10.3
AMENDED AND RESTATED
LEGAL SERVICES AGREEMENT
THIS AGREEMENT, dated as of September 1, 2002, 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
INVESTMENTS INC., a Delaware corporation ("Xxx Xxxxxx").
W I T N E S S E T H :
WHEREAS, each of the Funds is registered as an investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, Xxx Xxxxxx and its affiliates have the capability of providing
certain legal services to the Funds; and
WHEREAS, each Fund desires to utilize Xxx Xxxxxx and its affiliates in
the provision of such legal services; and
WHEREAS, Xxx Xxxxxx and its affiliates intend to provide 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. Xxx Xxxxxx and/or personnel of affiliates of
Xxx Xxxxxx under the direction of 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 and/or personnel of
affiliates of 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 and/or supervise personnel
of affiliates of Xxx Xxxxxx (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. Each member of the Legal Services Group will
complete as of the last business day of each month, a time allocation
sheet indicating the monthly time spent (reflected as a percentage) on
matters relating to the Funds, on matters relating to other funds for
which Xxx Xxxxxx or its subsidiaries act as investment adviser and
distributor ("Xxx Xxxxxx Non-Participating Funds") and for other
matters. The aggregate of time spent on matters for the Funds and Xxx
Xxxxxx Non-Participating Funds is referred to herein as the "Fund
Percentage". Each member's Fund Percentage shall be multiplied by each
member's individual Legal Service Expense; the resulting product for
each member shall then be aggregated to arrive at the Legal Services
Expenses that can be allocated as set forth in Paragraph 4 ("Allocable
Legal Services Expenses"). The Legal Services Expenses will be paid by
Xxx Xxxxxx (or the affiliate of Xxx Xxxxxx employing such Legal
Services Group persons) and that portion of such Legal Services
Expenses allocated to the Funds as set forth in Paragraph 4 shall be
reimbursed by the Funds. Xxx Xxxxxx will tender to each Fund a monthly
invoice within five business days of the last business day of each
month which shall certify the total Legal Service Expenses expended and
allocated to such Fund. 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 and its
affiliates will be responsible for all other expenses relating to the
providing of Legal Services.
4. Payment for Allocable Legal Services Expense Among the Funds. Each
month, one half (50%) of the Allocable Legal Services Expenses incurred
under the Agreement shall be attributable equally to each respective
Fund and Xxx Xxxxxx Non-Participating Fund. Xxx Xxxxxx shall assume the
costs of Legal Services Expenses for the Xxx Xxxxxx Non-Participating
Funds for which reimbursement is not received. The remaining one half
(50%) of the Allocable Legal Services Expenses shall be in allocated
(a) in the event services are attributable to specific funds (including
the Xxx Xxxxxx 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
2
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 1940 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 officer 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 admitting 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 negli-
3
gence 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 admitting 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 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
parties, and the Funds shall 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
4
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 Fund is 0 Xxxxxxxx
Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000, Attention: Treasurer and the
address of Xxx Xxxxxx, for this purpose is 0 Xxxxxxxx Xxxxx, Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000, Attention: Treasurer.
14. Personal Liability. As provided for in the Declaration of Trust of the
various Funds, under which the Funds are organized as unincorporated
trusts under the laws of the State of Delaware, Massachusetts or
Pennsylvania, as the case may be, the shareholders, trustees, officers,
employees and other agents of the Fund shall not personally be bound 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 operations 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.
5
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/ Xxxx Xxxxxxxx
-------------------------------------
Xxxx Xxxxxxxx
Vice President and Treasurer
XXX XXXXXX INVESTMENTS INC.
By: /s/ X. Xxxxxx Xxxxx
--------------------------------------
X. Xxxxxx Xxxxx
Managing Director
6
SCHEDULE 1
OPEN END FUNDS
XXX XXXXXX SERIES FUND, INC.
Xxx Xxxxxx American Value Fund
Xxx Xxxxxx Asian Equity Fund
Xxx Xxxxxx Emerging Markets Fund
Xxx Xxxxxx Equity Growth Fund
Xxx Xxxxxx European Value Equity Fund
Xxx Xxxxxx Focus Equity Fund
Xxx Xxxxxx Global Equity Allocation Fund
Xxx Xxxxxx Global Franchise Fund
Xxx Xxxxxx Global Value Equity Fund
Xxx Xxxxxx International Magnum Fund
Xxx Xxxxxx Latin American Fund
Xxx Xxxxxx Mid Cap Growth Fund
Xxx Xxxxxx Value Fund
Xxx Xxxxxx Worldwide High Income Fund
XXX XXXXXX U.S. GOVERNMENT TRUST
Xxx Xxxxxx U.S. Government Fund
XXX XXXXXX TAX FREE TRUST
Xxx Xxxxxx California Insured Tax Free Fund
Xxx Xxxxxx Insured Tax Free Income Fund
Xxx Xxxxxx Intermediate Term Municipal Income Fund
Xxx Xxxxxx Municipal Income Fund
Xxx Xxxxxx New York Tax Free Income Fund
Xxx Xxxxxx Strategic Municipal Income Fund
Xxx Xxxxxx Pennsylvania Tax Free Income Fund
XXX XXXXXX EQUITY TRUST
Xxx Xxxxxx Aggressive Growth Fund
Xxx Xxxxxx Growth Fund
Xxx Xxxxxx Select Growth Fund
Xxx Xxxxxx Small Cap Growth Fund
Xxx Xxxxxx Small Cap Value Fund
Xxx Xxxxxx Utility Fund
Xxx Xxxxxx Value Opportunities Fund
XXX XXXXXX TRUST
Xxx Xxxxxx High Yield Fund
XXX XXXXXX EQUITY TRUST II
Xxx Xxxxxx Technology Fund
Xxx Xxxxxx Tax Managed Equity Growth Fund
Xxx Xxxxxx International Advantage Fund
Xxx Xxxxxx Tax Free Money Fund
XXX XXXXXX LIFE INVESTMENT TRUST
Aggressive Growth Portfolio
7
CLOSED END FUNDS
Xxx Xxxxxx Advantage Municipal Income Trust
Xxx Xxxxxx Advantage Municipal Income Trust II
Xxx Xxxxxx Advantage Pennsylvania Municipal Income Trust
Xxx Xxxxxx California Municipal Trust
Xxx Xxxxxx California Quality Municipal Trust
Xxx Xxxxxx California Value Municipal Income Trust
Xxx Xxxxxx Florida Quality Municipal Trust
Xxx Xxxxxx High Income Trust
Xxx Xxxxxx High Income Trust II
Xxx Xxxxxx Investment Grade Municipal Trust
Xxx Xxxxxx Massachusetts Value Municipal Income Trust
Xxx Xxxxxx Municipal Income Trust
Xxx Xxxxxx Municipal Opportunity Trust
Xxx Xxxxxx Municipal Opportunity Trust II
Xxx Xxxxxx Municipal Trust
Xxx Xxxxxx New York Quality Municipal Trust
Xxx Xxxxxx New York Value Municipal Income Trust
Xxx Xxxxxx Ohio Quality Municipal Trust
Xxx Xxxxxx Ohio Value Municipal Income Trust
Xxx Xxxxxx Pennsylvania Quality Municipal Trust
Xxx Xxxxxx Pennsylvania Value Municipal Income Trust
Xxx Xxxxxx Prime Rate Income Trust
Xxx Xxxxxx Select Sector Municipal Trust
Xxx Xxxxxx Senior Floating Rate Fund
Xxx Xxxxxx Senior Income Trust
Xxx Xxxxxx Strategic Sector Municipal Trust
Xxx Xxxxxx Trust for Insured Municipals
Xxx Xxxxxx Trust for Investment Grade California Municipals
Xxx Xxxxxx Trust for Investment Grade Florida Municipals
Xxx Xxxxxx Trust for Investment Grade Municipals
Xxx Xxxxxx Trust for Investment Grade New Jersey Municipals
Xxx Xxxxxx Trust for Investment Grade New York Municipals
Xxx Xxxxxx Trust for Investment Grade Pennsylvania Municipals
Xxx Xxxxxx Value Municipal Income Trust
8
EXHIBIT 10.4
FORM OF
AMENDED AND RESTATED
SERVICE PLAN
XXX XXXXXX [ ] FUND
The plan set forth below (the "Service Plan") for the XXX XXXXXX [ ]
FUND (the "Fund"), describes the material term and conditions under which assets
of the Fund may be used to compensate the Fund's principal underwriter, within
the meaning of the Investment Company Act of 1940, as amended (the "1940 Act"),
brokers, dealers and other financial intermediaries (collectively "Financial
Intermediaries") for providing personal services to shareholders and/or the
maintenance of shareholder accounts with respect to each of its Class A Shares
of beneficial interest (the "Class A Shares"), its Class B Shares of beneficial
interest (the "Class B Shares"), and its Class C Shares of beneficial interest
(the "Class C Shares"). The Class A Shares, Class B Shares and Class C Shares
sometimes are referred to herein collectively as the "Shares." Each class of
Shares is offered and sold subject to a different combination of front-end sales
charges, distribution fees, service fees and contingent deferred sales
charges.(1) Classes of shares, if any, subject to a front-end sales charge and a
distribution and/or service fee are referred to herein as "Front-End Classes"
and the Shares of such classes are referred to herein as "Front-End 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 has adopted this Service Plan pursuant to which the Fund is
authorized to expend on an annual basis a portion of its average net assets
attributable to each class of Shares for providing personal services to
shareholders and/or the maintenance of shareholder accounts. The Fund also has
entered into a distribution and services agreement (the "Distribution and
Services Agreement") with Xxx Xxxxxx Funds Inc. (the "Distributor"), pursuant to
which the Distributor acts as agent on behalf of the Fund in connection with the
implementation of the Service Plan and acts as the principal underwriter with
respect to each class of Shares. The Distributor may enter into shareholder
servicing agreements (the "Service Agreements") with brokers, dealers and other
financial intermediaries ("Financial Intermediaries") in order to implement this
Service Plan.
--------
(1) The Fund is authorized to offer multiple classes of shares pursuant to a
Rule 18f-3 Plan adopted under the 1940 Act.
1. The Fund hereby is authorized to pay a service fee with respect to
its Class A Shares, Class B Shares and Class C Shares to any Financial
Intermediary who provides personal services to shareholders and/or maintains
shareholder accounts in an annual amount not to exceed 0.25% of the average
annual net asset value of the Shares maintained in the Fund by such person that
were sold on or after the date on which this Service Plan was first implemented.
The aggregate annual amount of all such payments with respect to each such class
of Shares may not exceed 0.25% of the Fund's average annual net assets
attributable to the respective class of Shares sold on or after the date on
which this Service Plan was first implemented and maintained in the Fund more
than one year.
2. Payments pursuant to this Service Plan may be paid or prepaid on
behalf of the Fund by the Distributor acting as the Fund's agent.
3. Payments by the Fund to the Distributor pursuant to this Service
Plan shall not be made more often than monthly upon receipt by the Fund of a
separate written expense report with respect to each class of Shares setting
forth the expenses qualifying for such reimbursement allocated to each class of
Shares and the purposes thereof.
4. In the event that amounts payable hereunder with respect to a class
of Shares do not fully reimburse the Distributor for pre-paid service fees, such
unreimbursed service fee expenses will be carried forward and paid by the Fund
hereunder in future years so long as this Service Plan remains in effect,
subject to applicable laws and regulations. Reimbursements for service fee
related expenses payable hereunder with respect to a particular class of Shares
may not be used to subsidize services provided with respect to any other class
of Shares.
5. The Fund shall not compensate the Distributor, and neither the Fund
nor the Distributor shall compensate any Financial Intermediary, for any service
related expenses incurred with respect to a class of Shares prior to the later
of (a) the implementation of this Service Plan with respect to such class of
Shares or (b) the date that such Financial Intermediary enters into a Service
Agreement with the Distributor.
6. The Fund hereby authorizes the Distributor to enter into Service
Agreements with certain Financial Intermediaries to provide compensation to such
Financial Intermediaries for activities and services of the type referred to in
Paragraph 1 hereof. Prior to the implementation of a Service Agreement, such
agreement shall be approved by a majority of the Board of Directors of the Fund
and a majority of the Disinterested Directors (within the meaning of the 1940
Act) by a vote cast in person at a meeting called for the purpose of voting on
such Service Agreements. Such Service Agreements shall provide that the
Financial Intermediaries shall provide the Distributor with such information as
is reasonably
2
necessary to permit the Distributor to comply with the reporting requirements
set forth in Paragraphs 3 and 8 hereof.
7. Subject to the provisions of this Service Plan, the Fund is hereby
authorized to pay a service fee to any person that is not an "affiliated person"
or "interested person" of the Fund or its "investment adviser" or "principal
underwriter" (as such terms are defined in the 1940 Act) who provides any of the
foregoing services for the Fund. Such fee shall be paid only pursuant to written
agreements between the Fund and such other person the terms of which permit
payments to such person only in accordance with the provisions of this Service
Plan and which have the approval of a majority of the Disinterested Directors by
vote cast separately with respect to each class of Shares and cast in person at
a meeting called for the purpose of voting on such written agreement.
8. The Fund and the Distributor shall prepare separate written reports
for each class of Shares and shall submit such reports to the Fund's Board of
Directors on a quarterly basis summarizing all payments made by them with
respect to each class of Shares pursuant to this Service Plan and the agreements
contemplated hereby, the purposes for which such payments were made and such
other information as the Board of Directors or the Disinterested Directors may
reasonably request from time to time, and the Board of Directors shall review
such reports and other information.
9. This Service Plan may be terminated with respect to a class of
Shares without penalty at any time by a majority of the Disinterested Directors
or by a "majority of the outstanding voting securities" of the respective class
of Shares of the Fund.
10. This Service Plan shall become effective upon its approval by (a) a
majority of the Board of Directors and a majority of the Disinterested Directors
by vote cast separately with respect to each class of Shares cast in person at a
meeting called for the purpose of voting on this Service Plan, and (b) with
respect to each class of Shares, a "majority of the outstanding voting
securities" (as such phrase is defined in the 1940 Act) of such class of Shares
voting separately as a class.
11. This Service Plan and any agreement contemplated hereby shall
continue in effect beyond the first anniversary of its adoption by the Board of
Directors of the Fund only so long as (a) its continuation is approved at least
annually in the manner set forth in clause (a) of paragraph 10 above and (b) the
selection and nomination of those Directors of the Fund who are not "interested
persons" of the Fund are committed to the discretion of such Directors.
12. This Service Plan may not be amended to increase materially the
maximum amounts permitted to be expended hereunder except with the approval of a
"majority of the outstanding voting securities" of the respective class of
3
Shares of the Fund. This Service Plan may not be amended in any material respect
except with the approval of a majority of the Disinterested Directors.
Amendments required to conform this Service Plan to changes in the 1940 Act, the
rules and regulations thereunder or the Conduct Rules of the NASD shall not be
deemed to be material amendments.
The Directors of the Fund have adopted this Service Plan as directors
under the Articles of Incorporation of the Fund and the policies of the Fund
adopted hereby are not binding upon any of the Directors or shareholders of the
Fund individually, but bind only the corporation.
Amended and Restated
May 23, 2002
4
EXHIBIT 10.5
AMENDED AND RESTATED
MULTI-CLASS PLAN
FOR
XXX XXXXXX FAMILY OF FUNDS
This Plan is adopted pursuant to Rule 18f-3 under the Act to provide
for the issuance and distribution of multiple classes of shares by the Xxx
Xxxxxx Open-End Funds listed on Exhibit A hereto, in accordance with the terms,
procedures and conditions set forth below. A majority of the Trustees/Directors
of the Funds, including a majority of the Trustees/Directors who are not
interested persons of the Funds within the meaning of the Act, found this
Multi-Class Plan, including the expense allocations, to be in the best interest
of each Fund and each Class of Shares of each Fund. This Plan was adopted on
January 26, 1996 and amended and restated as of May 23, 2002.
I. Definitions.
A. As used herein, the terms set forth below shall have the meanings
ascribed to them below.
1. The Act - Investment Company Act of 1940, as amended.
2. CDSC - contingent deferred sales charge.
3. CDSC Period - the period of years following acquisition during
which Shares are assessed a CDSC upon redemption.
4. Class - a class of Shares of a Fund.
5. Class A Shares - shall have the meaning ascribed in Section B.1.
6. Class B Shares - shall have the meaning ascribed in Section B.1.
7. Class C Shares - shall have the meaning ascribed in Section B.1.
8. Class D Shares - shall have the meaning ascribed in Section B.1.
9. Class R Shares - shall have the meaning ascribed in Section B.1.
10. Distribution Expenses - expenses incurred in activities which are
primarily intended to result in the distribution and sale of
Shares as defined in a Plan of Distribution and/or board
resolutions.
1
11. Distribution Fee - a fee paid by a Fund to the Distributor in
reimbursement of Distribution Expenses.
12. Distributor - Xxx Xxxxxx Funds Inc.
13. Fund - an investment company listed on Exhibit A hereto and each
series thereof.
14. Money Market Fund - Xxx Xxxxxx Reserve Fund or Xxx Xxxxxx Tax Free
Money Market Fund.
15. Plan of Distribution - Any plan adopted under Rule 12b-1 under the
Act with respect to payment of a Distribution Fee.
16. Service Fee - a fee paid to financial intermediaries for the
ongoing provision of personal services to Fund shareholders and/or
the maintenance of shareholder accounts.
17. Share - a share of beneficial interest in a Fund.
18. Trustees/Directors - the trustees/directors of a Fund.
B. Classes. Each Fund may offer five Classes as follows:
1. Class A Shares. Class A Shares shall be offered at net asset value
plus a front-end sales charge as approved from time to time by the
Trustees/Directors and set forth in the Funds' prospectus, which
may be reduced or eliminated for Money Market Funds, larger
purchases, under a combined purchase privilege, under a right of
accumulation, under a letter of intent or for certain categories of
purchasers as permitted by Rule 22(d) of the Act and as set forth
in the Fund's prospectus. Class A Shares that are not subject to a
front-end sales charge as a result of the foregoing, may be subject
to a CDSC for the CDSC Period set forth in Section D.1. The
offering price of Shares subject to a front-end sales charge shall
be computed in accordance with Rule 22c-1 and Section 22(d) of the
Act and the rules and regulations thereunder. Class A Shares shall
be subject to ongoing Service Fees and Distribution Fees approved
from time to time by the Trustees/Directors and set forth in the
Funds' prospectus. Although shares of Xxx Xxxxxx Tax Free Money
Market Fund are not designated as "Class A" they are substantially
similar to Class A Shares as defined herein and shall be treated as
Class A shares for the purposes of this Plan.
2. Class B Shares. Class B Shares shall be (1) offered at net asset
value, (2) subject to a CDSC for the CDSC Period set forth in
Section D. 1, (3) subject to ongoing Service Fees and Distribution
Fees approved from time to time by the Trustees/Directors and set
forth in the Funds' prospectus and (4) converted to
2
Class A Shares three to ten years after the calendar month in which
the shareholder's order to purchase was accepted, which number of
years shall be as approved from time to time by the
Trustees/Directors and set forth in the respective Fund's
prospectus.
3. Class C Shares. Class C Shares shall be (1) offered at net asset
value, (2) subject to a CDSC for the CDSC Period set forth in
Section D.1., (3) subject to ongoing Service Fees and Distribution
Fees approved from time to time by the Trustees/Directors and set
forth in the Funds' prospectus and (4) prior to January 1, 1997,
converted to Class A Shares eight to fifteen years after the
calendar month in which the shareholder's order to purchase was
accepted, which number of years shall be as approved from time to
time by the Trustees and set forth in the respective Fund's
prospectus.
4. Class D Shares. Class D Shares shall be offered at net asset value.
5. Class R Shares. Class R Shares shall be (1) offered at net asset
value and (2) subject to ongoing Service Fees and Distribution Fees
approved from time to time by the Trustees/Directors and set forth
in the respective Fund's prospectus.
C. Rights and Privileges of Classes. Each Class of each Fund will
represent an interest in the same portfolio of investments of that Fund
and will have identical voting, dividend, liquidation and other rights,
preferences, powers, restrictions, limitations, qualifications,
designations and terms and conditions except as described otherwise
herein.
D. CDSC. A CDSC may be imposed upon redemption of Class A Shares, Class B
Shares and Class C Shares that do not incur a front end sales charge
subject to the following conditions:
1. CDSC Period. The CDSC Period for Class A Shares and Class C Shares
shall be one year. The CDSC Period for Class B Shares shall be at
least three but not more than ten years as recommended by the
Distributor and approved by the Trustees/Directors.
2. CDSC Rate. The CDSC rate shall be recommended by the Distributor
and approved by the Trustees/Directors. If a CDSC is imposed for a
period greater than one year the CDSC rate must decline during the
CDSC Period such that (a) the CDSC rate is less in the last year of
the CDSC Period than in the first and (b) in each succeeding year
the CDSC rate shall be less than or equal to the CDSC rate in the
preceding year.
3. Disclosure and Changes. The CDSC rates and CDSC Period shall be
disclosed in a Fund's prospectus and may be decreased at the
discretion of
3
the Distributor but may not be increased unless approved as set
forth in Section L.
4. Method of Calculation. The CDSC shall be assessed on an amount
equal to the lesser of the then current market value or the cost of
the Shares being redeemed. No sales charge shall be imposed on
increases in the net asset value of the Shares being redeemed above
the initial purchase price. No CDSC shall be assessed on Shares
derived from reinvestment of dividends or capital gains
distributions. The order in which Class B Shares and Class C Shares
are to be redeemed when not all of such Shares would be subject to
a CDSC shall be as determined by the Distributor in accordance with
the provisions of Rule 6c-10 under the Act.
5. Waiver. The Distributor may in its discretion waive a CDSC
otherwise due upon the redemption of Shares under circumstances
previously approved by the Trustees/Directors and disclosed in the
Fund's prospectus or statement of additional information and as
allowed under Rule 6c-10 under the Act.
6. Calculation of Offering Price. The offering price of Shares subject
to a CDSC shall be computed in accordance with Rule 22c-1 and
Section 22(d) of the Act and the rules and regulations thereunder.
7. Retention by Distributor. The CDSC paid with respect to Shares of a
Fund may be retained by the Distributor to reimburse the
Distributor for commissions paid by it in connection with the sale
of Shares subject to a CDSC and Distribution Expenses to the extent
of such commissions and Distribution Expenses eligible for
reimbursement and approved by the Trustees/Directors.
E. Service and Distribution Fees. Class A, Class B, Class C and Class R
Shares shall be subject to a Service Fee and a Distribution Fee. The
Service Fee applicable to any class shall not exceed 0.25% per annum of
the average daily net assets of the Class and the Distribution Fee
shall not exceed 0.75% per annum of the average daily net assets of the
Class. All other terms and conditions with respect to Service Fees and
Distribution Fees shall be governed by the plans adopted by the Fund
with respect to such fees and Rule 12b-1 of the Act.
F. Conversion. Xxxxxx purchased through the reinvestment of dividends and
distributions paid on Shares subject to conversion shall be treated as
if held in a separate sub-account. Each time any Shares in a
Shareholder's account (other than Shares held in the sub-account)
convert to Class A Shares, a proportionate number of Shares held in the
sub-account shall also convert to Class A Shares. All conversions shall
be effected on the basis of the relative net asset values of the two
Classes without the imposition of any sales load or other charge. So
long as any Class of Shares converts into Class A Shares, the
Distributor shall waive or reimburse each Fund, or take such other
actions with the approval of the
4
Trustees/Directors as may be reasonably necessary, to ensure the
expenses, including payments authorized under a Plan of Distribution,
applicable to the Class A Shares are not higher than the expenses,
including payments authorized under the Plan of Distribution,
applicable to the class of shares converting into Class A Shares.
G. Allocation of Expenses, Income and Gains Among Classes.
1. Expenses applicable to a particular class. Each Class of each Fund
shall pay any Service Fee, Distribution Fee and CDSC applicable to
that Class. Other expenses applicable to a particular Class such as
incremental transfer agency fees, but not including advisory or
custodial fees or other expenses related to the management of the
Fund's assets, shall be allocated between Classes in different
amounts if they are actually incurred in different amounts by the
Classes or the Classes receive services of a different kind or to a
different degree than other Classes.
2. Distribution Expenses. Distribution Expenses actually attributable
to the sale of all Classes shall be allocated to each Class based
upon the ratio which sales of each Class bears to the sales of all
Shares of the Fund. For this purpose, Shares issued upon
reinvestment of dividends or distributions, upon conversion from
Class B Shares or Class C Shares to Class A Shares or upon stock
splits will not be considered sales.
3. Income, capital gains and losses, and other expenses applicable to
all Classes. Income, realized and unrealized capital gains and
losses, and expenses such as advisory fees applicable to all
Classes shall be allocated to each Class on the basis of the net
asset value of that Class in relation to the net asset value of the
Fund.
4. Determination of nature of expenses. The Trustees/Directors shall
determine in their sole discretion whether any expense other than
those listed herein is properly treated as attributed to a
particular Class or all Classes.
H. Exchange Privilege. Exchanges of Shares shall be permitted between
Funds as follows:
1. General. Shares of one Fund may be exchanged for Shares of the same
Class of another Fund at net asset value and without sales charge,
provided that:
a. The Distributor may specify that certain Funds may not be
exchanged within a designated period, which shall not
exceed 90 days, after acquisition without prior Distributor
approval.
5
b. Class A Shares of a Money Market Fund that were not
acquired in exchange for Class B or Class C Shares of a
Fund may be exchanged for Class A Shares of another Fund
only upon payment of the excess, if any, of the sales
charge rate applicable to the Shares being acquired over
the sales charge rate previously paid.
c. Shares of a Money Market Fund acquired through an exchange
of Class B Shares or Class C Shares may be exchanged only
for the same Class of another Fund as the Class they were
acquired in exchange for or any Class into which those
shares were converted.
2. CDSC Computation. The acquired Shares will remain subject to the
CDSC rate schedule and CDSC Period for the original Fund upon the
redemption of the Shares from the Xxx Xxxxxx complex of funds. For
purposes of computing the CDSC payable on a disposition of the new
Shares, the holding period for the original Shares shall be added
to the holding period of the new Shares.
I. Voting Rights of Classes.
1. Shareholders of each Class shall have exclusive voting rights on
any matter submitted to them that relates solely to the Plan of
Distribution related to that Class, provided that:
a. If any amendment is proposed to the plan under which
Distribution Fees are paid with respect to Class A Shares
of a Fund that would increase materially the amount to be
borne by Class A Shares under that plan, then no Class B
Shares or Class C Shares shall convert into Class A Shares
of that Fund until the holders of Class B Shares and Class
C Shares of that Fund have also approved the proposed
amendment.
b. If the holders of either the Class B Shares and/or Class C
Shares referred to in subparagraph a. do not approve the
proposed amendment, the Trustees/Directors of the Fund and
the Distributor shall take such action as is necessary to
ensure that the Class voting against the amendment shall
convert into another Class identical in all material
respects to Class A Shares of the Fund as constituted prior
to the amendment.
2. Shareholders shall have separate voting rights on any matter
submitted to shareholders in which the interest of one Class
differs from the interests of any other Class.
X. Xxxxxxxxx. Dividends paid by a Fund with respect to each Class, to the
extent any dividends are paid, will be calculated in the same manner at
the same time on the same day and will be in substantially the same
amount, except any Distribution
6
Fees, Service Fees or incremental expenses relating to a particular
Class will be borne exclusively by that Class.
K. Reports to Trustees/Directors. The Distributor shall provide to the
Trustees/Directors of each Fund quarterly and annual statements
concerning distribution and shareholder servicing expenditures
complying with paragraph (b)(3)(ii) of Rule 12b-1 of the Act, as it may
be amended from time to time. The Distributor also shall provide the
Trustees/Directors such information as the Trustees/Directors may from
time to time deem to be reasonably necessary to evaluate this Plan.
L. Amendment. Any material amendment to this Plan shall be approved by the
affirmative vote of a majority of the Trustees/Directors of a Fund,
including the affirmative vote of the Trustees/Directors of the Fund
who are not interested persons of the Fund, except that any amendment
that increases the CDSC rate schedule or CDSC Period must also be
approved by the affirmative vote of a majority of the Shares of the
affected Class. The Distributor shall provide the Trustees/Directors
such information as may be reasonably necessary to evaluate any
amendment to this Plan.
7
EXHIBIT A
XXX XXXXXX XXXXXXXX FUND
XXX XXXXXX CORPORATE BOND FUND
XXX XXXXXX EMERGING GROWTH FUND
XXX XXXXXX ENTERPRISE FUND
XXX XXXXXX EQUITY AND INCOME FUND
XXX XXXXXX EQUITY TRUST
XXX XXXXXX EQUITY TRUST II
XXX XXXXXX GOVERNMENT SECURITIES FUND
XXX XXXXXX GROWTH AND INCOME FUND
XXX XXXXXX HARBOR FUND
XXX XXXXXX HIGH INCOME CORPORATE BOND FUND
XXX XXXXXX LIMITED MATURITY GOVERNMENT FUND
XXX XXXXXX PENNSYLVANIA TAX FREE INCOME FUND
XXX XXXXXX XXXX FUND
XXX XXXXXX REAL ESTATE SECURITIES FUND
XXX XXXXXX RESERVE FUND
XXX XXXXXX SERIES FUND, INC.
XXX XXXXXX TAX-EXEMPT TRUST
XXX XXXXXX TAX FREE MONEY FUND
XXX XXXXXX U.S. GOVERNMENT TRUST FOR INCOME
XXX XXXXXX U.S. GOVERNMENT TRUST
XXX XXXXXX TAX FREE TRUST
XXX XXXXXX TRUST
8
