FORM OF
AMENDED AND RESTATED
DEFERRED COMPENSATION AGREEMENT
AGREEMENT, made on this 11th day of August, 1994, and as amended and
restated as of [Date], by and between each of the funds listed on Schedule A
attached hereto as may be amended from time to time, each a registered
investment company having its principal offices at 0 Xxxxxxxx Xxxxx, X.X. Xxx
0000, Xxxxxxxx Terrace, Illinois 60181-5555 (collectively the "Funds" or
individually the "Fund"), and [Trustee Name], residing at [Trustee Address] (the
"Trustee").
WHEREAS, the Fund and the Trustee desire to enter into an agreement
whereby the Fund will provide to the Trustee a vehicle under which the Trustee
can defer receipt of trustees' fees payable by the Fund.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth in this Agreement, the Fund and the Trustee hereby agree as follows:
1. DEFINITION OF TERMS AND CONSTRUCTION
1.1 Definitions. Unless a different meaning is plainly implied by the
context, the following terms as used in this Agreement shall have the following
meanings:
(a) "Beneficiary" shall mean such person or persons designated
pursuant to Section 4.3 hereof to receive benefits after the death of the
Trustee.
(b) "Board of Trustees" shall mean the Board of Trustees of the
Fund.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, or any successor statute.
(d) "Compensation" shall mean the amount of trustee's fees paid by
the Fund to the Trustee during a Deferral Year prior to reduction for
Compensation Deferrals made under this Agreement.
(e) "Compensation Deferral" shall mean the amount or amounts of the
Trustee's Compensation deferred under the provisions of Section 3 of this
Agreement.
(f) "Deferral Account" shall mean the account maintained to reflect
the Trustee's Compensation Deferral made pursuant to Section 3 hereof and any
other credits or debits thereto.
(g) "Deferral Year" shall mean each calendar year during which the
Trustee makes, or is entitled to make, a Compensation Deferral under Section 3
hereof.
(h) "Valuation Date" shall mean any day upon which the Fund makes a
valuation of the Deferral Account and shall, at a minimum, be the last business
day of each calendar quarter.
1.2 Plurals and Gender. Where appearing in this Agreement the singular
shall include the plural and the masculine shall include the feminine, and vice
versa, unless the context clearly indicates a different meaning.
1.3 Headings. The headings and subheadings in this Agreement are inserted
for the convenience of reference only and are to be ignored in any construction
of the provisions hereof.
2. PERIOD DURING WHICH COMPENSATION DEFERRALS ARE PERMITTED
2.1 Commencement of Compensation Deferrals. The Trustee may elect, on a
form provided by, and submitted to, the President of the Fund, to commence
Compensation Deferrals under Section 3 hereof for the period beginning on the
later of (i) the date this Agreement is executed or (ii) the date such form is
submitted to the President of the Fund.
2.2 Termination of Deferrals. The Trustee shall not be eligible to make
Compensation Deferrals after the earlier of the following dates:
(a) The date of which he ceases to serve as a Trustee of the Fund;
or
(b) The effective date of the termination of this Agreement.
3. COMPENSATION DEFERRALS
3.1 Compensation Deferral Elections.
(a) On or prior to the first day of any Deferral Year, the Trustee
may elect, on the form described in Section 2.1 hereof, to defer the receipt of
all or a portion of the Compensation for such Deferral Year. Such writing shall
set forth the amount of such Compensation Deferral (in whole percentage
amounts). Such election shall continue in effect for all subsequent Deferral
Years unless it is canceled or modified as provided below.
(b) Compensation Deferrals shall be withheld from each
payment of Compensation by the Fund to the Trustee based upon the percentage
amount elected by the Trustee under Section 3.1(a) hereof.
(c) The Trustee may cancel or modify the amount of his Compensation
Deferrals on a prospective basis by submitting to the President of the Fund a
revised Compensation Deferral election form. Such change will be effective as of
the first day of the Deferral Year following the date such revision is submitted
to the President of the Fund.
3.2 Valuation of Deferral Account.
(a) The Fund shall establish a bookkeeping Deferral Account to which
will be credited an amount equal to the Trustee's Compensation Deferrals under
this Agreement. Compensation Deferrals shall be allocated to the Deferral
Account on the first business day following the date such Compensation Deferrals
are withheld from the Trustee's Compensation. The Deferral Account shall be
debited to reflect any distributions from such Account. Such debits shall be
debited to the Deferral Account as of the date such distributions are made.
(b) As of each Valuation Date, income, gain and loss equivalents
(determined as if the Deferral Account is invested in the manner set forth under
Section 3.3 below) attributable to the period following the next preceding
Valuation Date shall be credited to and/or deducted from the Trustee's Deferral
Account.
3.3 Investment of Deferral Account Balance.
(a) (1) The Trustee may select, from various options made available
by the Fund, the investment media in which all or part of his Deferral Account
shall be deemed to be invested.
(2) The Trustee shall make an investment designation on a form
provided by the President of the Fund which shall remain effective until another
valid direction has been made by the Trustee as herein provided. The Trustee may
amend the investment designation as of the end of each calendar quarter by
giving written direction to the President of the Fund at least 30 days prior to
the end of such calendar quarter. A timely change in a Trustee's investment
designation shall become effective on the first day of the calendar quarter
following receipt by the President of the Fund.
(3) The investment media deemed to be made available to the Trustee,
and any limitation on the maximum or minimum percentages of the Trustee's
Deferral Account that may be invested in any particular medium, shall be the
same as from time to time communicated to the Trustee by the President of the
Fund.
(b) Except as provided below, the Trustee's Deferral Account shall
be deemed to be invested in accordance with the investment designations,
provided such designations conform to the provisions of this Section. If:
(1) the Trustee does not furnish the President of the Fund
with written investment instructions,
(2) the written investment instructions from the Trustee are
unclear, or
(3) less than all of the Trustee's Deferral Account is covered
by such written investment instructions,
then the Trustee's Deferral Account shall be deemed to be invested in the Fund
until such time as the Trustee shall provide the President of the Fund with
complete investment instructions. Notwithstanding the above, the Board of
Directors, in its sole discretion, may disregard the Trustee's election and
determine that all Compensation Deferrals shall be deemed to be invested in the
Fund.
The Fund shall provide an annual statement to the Trustee showing such
information as is appropriate, including the aggregate amount in the Deferral
Account, as of a reasonably current date.
4. DISTRIBUTIONS FROM DEFERRAL ACCOUNT
4.1 In General. Distributions from the Trustee's Deferral Account shall be
paid in cash, in generally equal annual installments over a period of five (5)
years beginning on the date of the Trustee's retirement or disability, except
that the Board of Directors may, in its sole discretion, accelerate or, with the
consent of the Trustee, extend the distribution of such Deferral Account.
Notwithstanding the foregoing, in the event of the liquidation, dissolution or
winding up of the Fund or the distribution of all or substantially all of the
Fund's assets and property relating to one or more series of its shares to the
shareholders (for this purpose a sale, conveyance or transfer of the Fund's
assets to a trust, partnership, association or corporation in exchange for cash,
shares or other securities with the transfer being made subject to, or with the
assumption by the transferee of, the liabilities of the Fund shall not be deemed
a termination of the Fund or such a distribution), all unpaid amounts in the
Deferral Account as of the effective date thereof shall be paid in a lump sum on
such effective date.
4.2 Death Prior to Distribution of Deferral Account. Upon the death of the
Trustee prior to the commencement of the distribution of the amounts credited to
the Deferral Account, the Deferral Account shall be distributed to the
Beneficiary over a period of five (5) years beginning as soon as practicable
after the Trustee's death. In the event of the death of the Trustee after the
commencement of such distribution, but prior to the complete distribution of the
Deferral Account, the balance of the amounts in the Deferral Account shall be
distributed to the Beneficiary over the remaining period during which such
amounts were distributable to the Trustee under Section 4.1 hereof. In the event
the Trustee survives the designated Beneficiary, the balance of such
Deferral Account shall be paid in a lump sum to such Trustee's estate.
Notwithstanding the above, the Board of Directors may, in its sole discretion,
accelerate or, with the consent of the Beneficiary or the Trustee's estate, as
applicable, extend the distribution of the Deferral Account.
4.3 Designation of Beneficiary. For purposes of Section 4.2 hereof, the
Trustee's Beneficiary shall be the person or persons so designated by the
Trustee in a written instrument submitted to the President of the Fund. In the
event the Trustee fails to properly designate a Beneficiary, the balance of such
Trustee's Deferred Account shall be paid in a lump sum to such Trustee's estate.
4.4 Payments Due Missing Persons. The Fund shall make a reasonable effort
to locate all persons entitled to benefits under this Agreement. However,
notwithstanding any provisions of this Agreement to the contrary, if, after a
period of five (5) years from the date such benefit shall be due, any such
persons entitled to benefits have not been located, their rights under this
Agreement shall stand suspended. Before this provision becomes operative, the
Fund shall send a certified letter to all such persons to their last known
address advising them that their benefits under this Agreement shall be
suspended. Any such suspended amounts shall be held by the Fund for a period of
three (3) additional years (or a total of eight (8) years from the time the
benefits first become payable) and thereafter, if unclaimed, such amounts shall
be forfeited.
5. AMENDMENTS AND TERMINATION
5.1 Amendments.
(a) The Fund and the Trustee may, by a written instrument signed by
both such parties, amend this Agreement at any time and in any manner.
(b) The Fund reserves the right to amend, in whole or in part, and
in any manner, any or all of the provisions of this Agreement by action of its
Board of Trustees for the purposes of complying with any provision of the Code
or any other technical or legal requirements, provided that:
(1) No such amendment shall make it possible for any part of
the Trustee's Deferral Account to be used for, or diverted to, purposes other
than for the exclusive benefit of the Trustee or the Beneficiaries, except to
the extent otherwise provided in this Agreement; and
(2) No such amendment may reduce the amount of the Trustee's
Deferral Account as of the effective date of such amendment.
5.2 Termination. The Trustee and the Fund may, by written instrument
signed by both such parties, terminate this Agreement at any time. The rights of
the
Trustee to the Deferral Account shall become payable as of the Valuation Date
next following the effective date of the termination of this Agreement.
6. MISCELLANEOUS.
6.1 Rights of Creditors.
(a) This Agreement is unfunded. Neither the Trustee nor any
other persons shall have any interest in any specific asset or assets of the
Fund by reason of any Deferral Account hereunder, nor any rights to receive
distribution of the Deferral Account except and as to the extent expressly
provided hereunder. The Fund shall not be required to purchase, hold or dispose
of any investments pursuant to this Agreement; however, if in order to cover its
obligations hereunder the Fund elects to purchase any investments the same shall
continue for all purposes to be a part of the general assets and property of the
Fund, subject to the claims of its general creditors and no person other than
the Fund shall by virtue of the provisions of this Agreement have any interest
in such assets other than an interest as a general creditor.
(b) The rights of the Trustee and the Beneficiaries to the
amounts held in the Deferral Account are unsecured and shall be subject to the
creditors of the Fund. With respect to the payment of amounts held under the
Deferral Account, the Trustee and the Beneficiaries have the status of unsecured
creditors of the Fund. This Agreement is executed on behalf of the Fund by an
officer of the Fund as such and not individually. Any obligation of the Fund
hereunder shall be an unsecured obligation of the Fund and not of any other
person.
6.2 Agents. The Fund may employ agents and provide for such clerical,
legal, actuarial, accounting, advisory or other services as it deems necessary
to perform its duties under this Agreement. The Fund shall bear the cost of such
services and all other expenses it incurs in connection with the administration
of this Agreement.
6.3 Liability and Indemnification. Except for its own gross negligence,
willful misconduct or willful breach of the terms of this Agreement, the Fund
shall be indemnified and held harmless by the Trustee against liability or
losses occurring by reason of any act or omission of the Fund or any other
person.
6.4 Incapacity. If the Fund shall receive evidence satisfactory to it that
the Trustee or any Beneficiary entitled to receive any benefit under the
Agreement is, at the time when such benefit becomes payable, a minor, or is
physically or mentally incompetent to receive such benefit and to give a valid
release therefor, and that another person or an institution is then maintaining
or has custody of the Trustee or Beneficiary and that no guardian, committee or
other representative of the estate of the Trustee or Beneficiary shall have been
duly appointed, the Fund may make payment of such benefit otherwise payable to
the Trustee or Beneficiary to such other person or institution, including a
custodian under the Uniform Gifts to Minors Act or corresponding legislation
(such custodian shall be an adult, a guardian of the minor or a trust
company), and the release of such other person or institution shall be a valid
and complete discharge for the payment of such benefit.
6.5 Cooperation of Parties. All parties to this Agreement and any person
claiming any interest hereunder agree to perform any and all acts and execute
any and all documents and papers which are necessary or desirable for carrying
out this Agreement or any of its provisions.
6.6 Governing Law. This Agreement is made and entered into in the State of
Illinois, and all matters concerning its validity, construction and
administration shall be governed by the laws of the State of Illinois.
6.7 Nonguarantee of Trusteeship. Nothing contained in this Agreement shall
be construed as a contract or guarantee of the right of the Trustee to be, or
remain as, a trustee of the Fund or to receive any, or any particular rate of,
Compensation.
6.8 Counsel. The Fund may consult with legal counsel with respect to the
meaning or construction of this Agreement or its obligations or duties hereunder
or with respect to any action or proceeding or any question of law, and it shall
be fully protected with respect to any action taken or omitted by it in good
faith pursuant to the advice of legal counsel.
6.9 Spendthrift Provision. The Trustee's and Beneficiaries' interests in
the Deferral Account may not be anticipated, sold, encumbered, pledged,
mortgaged, charged, transferred, alienated, assigned nor become subject to
execution, garnishment or attachment, and any attempt to do so by any person
shall render the Deferral Amount immediately forfeitable.
6.10 Notices. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered personally or mailed by United
States registered or certified mail, return receipt requested, postage prepaid,
or by nationally recognized overnight delivery service providing for a signed
return receipt, addressed to the Trustee at the home address set forth in the
Fund's records and to the Fund at the address set forth on the first page of
this Agreement, provided that all notices to the Fund shall be directed to the
attention of the President of the Fund or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon receipt.
6.11 Entire Agreement. This Agreement contains the entire understanding
between the Fund and the Trustee with respect to the payment of non-qualified
elective deferred compensation by the Fund to the Trustee.
6.12 Interpretation of Agreement. Interpretations of, and determinations
related to, this Agreement made by the Fund in good faith, including any
determinations of the amounts of the Deferral Account, shall be conclusive and
binding upon all parties;
and the Fund shall not incur any liability to the Trustee for any such
interpretation or determination so made or for any other action taken by it in
connection with this Agreement in good faith.
6.13 Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of, the Fund and its successors and assigns and to
the Trustee and such Trustee's heirs, executors, administrators and personal
representatives.
6.14 Severability. In the event any one or more provisions of this
Agreement are held to be invalid or unenforceable, such illegality or
unenforceability shall not affect the validity or enforceability of the other
provisions thereof and such other provisions shall remain in full force and
effect unaffected by such invalidity or unenforceability.
6.15 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Deferred
Compensation Agreement to be executed as of the day and year first above
written.
On behalf of the Funds listed on
Schedule A attached hereto:
By: ____________________________
Name: __________________________
Title: _________________________
On behalf of the Trustee listed on page 1 hereto
_________________________
[Trustee Name]
SCHEDULE A
DEFERRED COMPENSATION AGREEMENT
PARTICIPATING XXX XXXXXX FUNDS
AS OF APRIL 22, 1998
Updated as of July 1, 2003
Xxx Xxxxxx Municipal Income Trust ("Municipal Income Trust")
Xxx Xxxxxx California Municipal Trust ("California Municipal Trust")
Xxx Xxxxxx High Income Trust ("High Income Trust")
Xxx Xxxxxx High Income Trust II ("High Income Trust II")
Xxx Xxxxxx Investment Grade Municipal Trust ("Investment Grade Municipal Trust")
Xxx Xxxxxx Senior Loan Fund ("Senior Loan Fund") (f/k/a Xxx Xxxxxx Prime Rate
Income Trust)
Xxx Xxxxxx Municipal Trust ("Municipal Trust")
Xxx Xxxxxx California Quality Municipal Trust ("California Quality Municipal
Trust")
Xxx Xxxxxx Florida Quality Municipal Trust ("Florida Quality Municipal Trust")
Xxx Xxxxxx New York Quality Municipal Trust ("New York Quality Municipal Trust")
Xxx Xxxxxx Ohio Quality Municipal Trust ("Ohio Quality Municipal Trust")
Xxx Xxxxxx Pennsylvania Quality Municipal Trust ("Pennsylvania Quality Municipal
Trust")
Xxx Xxxxxx Trust for Insured Municipals ("Trust for Insured Municipals")
Xxx Xxxxxx Trust for Investment Grade Municipals ("Trust for Investment Grade
Municipals")
Xxx Xxxxxx Trust for Investment Grade California Municipals ("Trust for
Investment Grade California Municipals")
Xxx Xxxxxx Trust for Investment Grade Florida Municipals ("Trust for Investment
Grade Florida Municipals")
Xxx Xxxxxx Trust for Investment Grade New Jersey Municipals ("Trust for
Investment Grade New Jersey Municipals")
Xxx Xxxxxx Trust for Investment Grade New York Municipals ("Trust for Investment
Grade New York Municipals")
Xxx Xxxxxx Trust for Investment Grade Pennsylvania Municipals ("Trust for
Investment Grade Pennsylvania Municipals")
Xxx Xxxxxx Municipal Opportunity Trust ("Municipal Opportunity Trust")
Xxx Xxxxxx Advantage Municipal Income Trust ("Advantage Municipal Income Trust")
Xxx Xxxxxx Advantage Pennsylvania Municipal Income Trust ("Advantage
Pennsylvania Municipal Income Trust")
Xxx Xxxxxx Strategic Sector Municipal Trust ("Strategic Sector Municipal Trust")
Xxx Xxxxxx Value Municipal Income Trust ("Value Municipal Income Trust")
Xxx Xxxxxx California Value Municipal Income Trust ("California Value Municipal
Income Trust")
Xxx Xxxxxx Massachusetts Value Municipal Income Trust ("Massachusetts Value
Municipal Income Trust")
Xxx Xxxxxx New York Value Municipal Income Trust ("New York Value Municipal
Income Trust")
Xxx Xxxxxx Ohio Value Municipal Income Trust ("Ohio Value Municipal Income
Trust")
Xxx Xxxxxx Pennsylvania Value Municipal Income Trust ("Pennsylvania Value
Municipal Income Trust")
Xxx Xxxxxx Municipal Opportunity Trust II ("Municipal Opportunity Trust II")
Xxx Xxxxxx Advantage Municipal Income Trust II ("Advantage Municipal Income
Trust II")
Xxx Xxxxxx Select Sector Municipal Trust ("Select Sector Municipal Trust")
Xxx Xxxxxx Senior Income Trust ("Senior Income Trust")
Xxx Xxxxxx Income Trust ("Income Trust")
Xxx Xxxxxx Bond Fund ("Bond Fund")
Note: Xxx Xxxxxx Exchange Fund does not have any deferred compensation
arrangements or provides a retirement plan.
