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EXHIBIT 9(f)
AGREEMENT RELATING TO INSURANCE
THIS AGREEMENT RELATING TO INSURANCE made as of November __, 1995 (this
"Agreement") by and among OLD MUTUAL SOUTH AFRICA EQUITY TRUST, a Massachusetts
trust (the "Master Trust"), OLD MUTUAL EQUITY GROWTH ASSETS SOUTH AFRICA FUND, a
Massachusetts business trust (the "OMEGA Fund"), OLD MUTUAL SOUTH AFRICA GROWTH
ASSETS FUND LIMITED, a Bermuda mutual fund (the "SAGA Fund"), and OLD MUTUAL
ASSET MANAGERS (BERMUDA) LIMITED, a Bermuda company (the "Adviser");
W I T N E S S E T H:
WHEREAS, the Master Trust invests in a portfolio consisting primarily
of South African securities;
WHEREAS, each of the OMEGA Fund and the SAGA Fund invests substantially
all of its investable assets in the Master Trust;
WHEREAS, the Adviser acts as investment adviser to the Master Trust and
may, from time to time hereafter, act in the same capacity with respect to other
clients, including other investment companies;
WHEREAS, all the parties hereto are named insureds under an errors and
omissions liability policy (as it may be amended and/or restated from time to
time, collectively the "E&O Policy") issued by Gulf Insurance Company, or such
other insurers as from time to time may provide the E&O Policy (the "E&O
Insurer");
WHEREAS, the Master Trust, the OMEGA Fund, and the SAGA Fund
(collectively, the "Funds" or the "Fund Parties") are named insureds under a
fidelity bond (as it may be amended and/or restated from time to time,
collectively the "Bond", and collectively with the E&O Policy, the "Policy")
issued by Gulf Insurance Company, or such other insurers as from time to time
may provide the Bond (together with the E&O Insurer as appropriate, the
"Insurer"); and
WHEREAS, the parties desire to establish (a) the criteria by which the
premium for the Policy shall be allocated among the parties and (b) the criteria
by which claims in excess of the applicable coverage limits of the Policy shall
be allocated among the parties.
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NOW, THEREFORE, it is agreed as follows:
1. ALLOCATION OF PREMIUMS.
(a) One half of the annual premium for each policy year with respect to
the E&O Policy shall be borne by the Adviser and the other half of such annual
premium (the "Funds Premium") shall be borne by the Funds.
(b) Each of the Funds shall for each policy year pay a portion of the
annual premium for the Bond and the Funds Premium that shall be determined as
follows: (i) for the initial policy year such premiums shall be allocated fifty
percent (50%) to the Master Trust and twenty-five percent (25%) to each of the
OMEGA Fund and the SAGA Fund, and (ii) for each following policy year such
premiums shall be allocated proportionately according to the respective net
asset value of each of the Funds on the last business day of the next preceding
policy year.
(c) Promptly after the determination of the annual Policy premium for
each policy year, the Adviser shall prepare a schedule (the "Allocation
Schedule") setting forth in reasonable detail the proposed allocation of the
premium for such year in accordance with this Section 1. The Adviser shall
promptly provide the Allocation Schedule to the administrator of each of the
Funds for review. If within ninety (90) days of provision of the Allocation
Schedule to the administrator of each of the Funds, none of the Funds has
objected to the Allocation Schedule, the allocation of the premium set forth
therein shall, absent manifest error, be conclusive and binding among the
parties.
2. ALLOCATION OF COVERAGE.
(a) The Adviser shall not with respect to any policy year collect
insurance payments under the E&O Policy (whether in respect of related or
unrelated claims) totaling more than fifty percent (50%) of the policy limit for
such policy year of the E&O Policy.
(b) In the event that the claims of loss of two or more insureds under
the E&O Policy are so related that the Insurer is entitled to assert that the
claims must be aggregated with the result that the claims exceed the applicable
coverage limits for such claims, or in the event that at any time the claims of
two or more insureds under the E&O Policy for any other reason exceed the
applicable coverage limits for such claims, the
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following rules for determining, as among such insureds, the priority of
satisfaction of the claims under the E&O Policy shall apply:
(i) All claims of the Adviser which have been duly proved and
established under the E&O Policy shall be satisfied in full
subject to the limit under Section 2(a). All claims of the
Funds which have been duly proved and established under the
E&O Policy shall be satisfied in full subject (as to not more
than fifty percent (50%) of the policy limit for the current
policy year) to any established or pending claims of the
Adviser, provided that, if any such pending claim is
subsequently disallowed, any claims of the Funds subject to
such pending claim shall, if permitted under the terms of the
E&O Policy, thereupon be reinstated.
(ii) If the claims of the Funds which have been duly proved and
established under the E&O Policy exceed the coverage of the
E&O Policy available to the Funds, the insurance proceeds
shall be applied to those claims, subject to any requirements
of the 1940 Act or other applicable laws or regulations, on a
ratable basis according to the allocation of premiums among
the Fund Parties as provided in Section 1 of this Agreement
with respect to the current policy year.
(c) In no case shall any Fund with respect to any policy year collect
payments under the Bond (whether in respect of related or unrelated claims)
totaling more than its ratable share of the coverage under the Bond determined
according to the allocation of premiums among the Fund Parties as provided in
Section 1 of this Agreement with respect to the current policy year. In the
event that the claims of loss of two or more Funds under the Bond are so related
that the Insurer is entitled to assert that the claims must be aggregated with
the result that the claims exceed the applicable coverage limits for such
claims, or in the event that at any time the claims of two or more Funds under
the Bond for any other reason exceed the applicable coverage limits for such
claims, the following rules for determining, as among such insureds, the
priority of satisfaction of the claims under the Bond shall apply:
(i) first, to each Fund such that it receives an amount at least
equal to the amount that it would have received had it
maintained a separate fidelity bond with the minimum coverage
required by paragraph (d)(1) of Rule 17g-1 under the 1940 Act
(or, if such Fund is not registered under the
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1940 Act, the amount that would be required were such Fund so
registered); and
(ii) second, subject to any requirements of the 1940 Act or other
applicable laws or regulations, on a ratable basis according
to the allocation of premiums among the Fund Parties as
provided in Section 1 of this Agreement with respect to the
current policy year.
3. RENEWAL AND TERMINATION.
(a) The Adviser shall at least thirty (30) days prior to the end of
each policy year of each of the E&O Policy and the Bond make a proposal to the
Funds regarding insurance arrangements for the next policy year with respect
thereto (including the coverage amount, the quoted premium, and the proposed
Insurer).
(b) Any party to this Agreement that is party to either the E&O Policy
or the Bond may cease to participate in the E&O Policy or the Bond, as the case
may be, and accordingly cease to be bound by the terms of this Agreement with
respect thereto, with effect from the end of any policy year applicable to the
E&O Policy or the Bond, as the case may be, on the giving of written notice to
each other party to this Agreement not less than fifteen (15) days prior to the
end of such policy year. Such notice shall have no effect with respect to the
allocation of premiums or coverage payable under or in respect of insurance in
force prior to the end of such policy year.
4. PRIOR AGREEMENTS. This Agreement hereby supersedes all prior
or contemporaneous agreements among the parties hereto (or any two or more of
them) (which other agreements may include other parties) relating to the subject
matter hereof.
5. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of Massachusetts.
6. AMENDMENTS. This Agreement may be amended or modified with the
prior written consent of the parties hereto.
7. HEADINGS. The section references in this Agreement are for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement.
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8. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original and all of which shall constitute one and the
same instrument. In proving this Agreement it shall not be necessary to submit
more than one counterpart executed by each party hereto.
9. PROTECTION OF TRUSTEES.
(a) This Agreement is executed by the Trustees of the Master Trust
not individually, but as Trustees under the Declaration of Trust of the Master
Trust dated as of September 1, 1995, and the obligations of this Agreement are
not binding upon any of such Trustees individually.
(b) This Agreement is executed by the Trustees of the OMEGA Fund
not individually, but as Trustees under the Declaration of Trust of the OMEGA
Fund dated as of September 1, 1995, and the obligations of this Agreement are
not binding upon any of such Trustees or on the shareholders of the OMEGA Fund
individually, but bind only the trust estate of the OMEGA Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as a sealed instrument by their officers hereunto duly authorized all
as of the day and year first above written.
OLD MUTUAL SOUTH AFRICA
EQUITY TRUST
By: _______________________________
Xxxxxxx Xxxx Xxxxxx
Chairman of the Board of Trustees
OLD MUTUAL EQUITY GROWTH ASSETS
SOUTH AFRICA FUND
By: _______________________________
Xxxxxxx Xxxx Xxxxxx
Chairman of the Board of Trustees
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XXX XXXXXX XXXXX XXXXXX GROWTH
ASSETS FUND LIMITED
By: _______________________________
Xxxxxxx Xxxx Xxxxxx
Chairman of the Board of Directors
OLD MUTUAL ASSET MANAGERS
(BERMUDA) LIMITED
By: _______________________________
Xxxxxxx Xxxxxxx
President
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