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EXHIBIT 9(b)
LEGAL SERVICES AGREEMENT
THIS AGREEMENT, dated as of October 31, 1996, by and between the
parties as set forth in Schedule 1, attached hereto and incorporated by
reference (designated collectively hereafter as the "Funds"), and ▇▇▇ ▇▇▇▇▇▇
AMERICAN CAPITAL, INC. (formerly Van ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Holdings Corp.), a Delaware
corporation ("▇▇▇ ▇▇▇▇▇▇").
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, ▇▇▇ ▇▇▇▇▇▇ has the capability of providing certain legal
services to the Funds; and
WHEREAS, each Fund desires to utilize ▇▇▇ ▇▇▇▇▇▇ in the provision of
such legal services; and
WHEREAS, ▇▇▇ ▇▇▇▇▇▇ intends to increase 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 ▇▇▇ ▇▇▇▇▇▇. As agent, ▇▇▇ ▇▇▇▇▇▇ shall provide each of
the Funds the legal services (the "Legal Services") as set forth in Paragraph 2
of this Agreement. ▇▇▇ ▇▇▇▇▇▇ 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. ▇▇▇ ▇▇▇▇▇▇ 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. ▇▇▇
▇▇▇▇▇▇ shall hire persons (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 ▇▇▇ ▇▇▇▇▇▇ 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, as
well as overhead and expenses related to office space and necessary equipment.
The Legal Services Expenses will be paid by ▇▇▇ ▇▇▇▇▇▇ and reimbursed by the
Funds. ▇▇▇ ▇▇▇▇▇▇ will
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tender to each Fund a monthly invoice as of the last business day of each month
which shall certify the total Legal Service Expenses expended. Except as
provided herein, ▇▇▇ ▇▇▇▇▇▇ will receive no other compensation in connection
with Legal Services rendered in accordance with this Agreement, and ▇▇▇ ▇▇▇▇▇▇
will be responsible for all other expenses relating to the providing of Legal
Services.
4. Payment for Legal Services Expense Among the Funds. One half (50%) of
the Legal Services Expenses incurred under the Agreement shall be attributable
equally to each respective Fund and all other funds to whom ▇▇▇ ▇▇▇▇▇▇ provides
Legal Services, including all other Funds for which ▇▇▇ ▇▇▇▇▇▇ serves as
investment adviser and distributor and the Govett Funds (the Non-Participating
Funds"). ▇▇▇ ▇▇▇▇▇▇ shall assume the costs of Legal Services for the
Non-Participating Funds for which reimbursement is not received. The remaining
one half (50%) of the Legal Services Expenses shall be in allocated (a) in the
event services are attributable to specific funds (including the
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
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 ▇▇▇ ▇▇▇▇▇▇ in
connection with the performance of its duties under this Agreement will remain
the property of each respective Fund and will be preserved by ▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇ ▇▇▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇ ▇▇▇▇▇▇, its
agents or contractors.
7. Indemnification By Funds. Each Fund will indemnify and hold ▇▇▇ ▇▇▇▇▇▇
harmless from all loss, cost, damage and expense, including reasonable expenses
for legal counsel, incurred by ▇▇▇ ▇▇▇▇▇▇ resulting from (a) any claim, demand,
action or suit in connection with ▇▇▇ ▇▇▇▇▇▇'▇ acceptance of this Agreement;
(b) an action or omission by ▇▇▇ ▇▇▇▇▇▇ in the performance of its duties
hereunder; (c) ▇▇▇ ▇▇▇▇▇▇'▇ acting upon instructions believed by it to have
been executed by a duly authorized office of the Fund; or (d) ▇▇▇ ▇▇▇▇▇▇'▇
acting upon information provided by the Fund in form and under policies agreed
to by ▇▇▇ ▇▇▇▇▇▇ and the Fund. ▇▇▇ ▇▇▇▇▇▇ shall not be entitled to such
indemnification in respect of action or omissions constituting negligence or
willful misconduct of ▇▇▇ ▇▇▇▇▇▇ or its agents or contractors. Prior to
confessing any claim against it which may be subject to this indemnification,
Van
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Kampen shall give the Fund reasonable opportunity to defend against said
claim on its own name or in the name of ▇▇▇ ▇▇▇▇▇▇.
8. Indemnification By ▇▇▇ ▇▇▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇ ▇▇▇▇▇▇'▇ failure to comply
with the terms of this Agreement or which arises out of the negligence or
willful misconduct of ▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇ ▇▇▇▇▇▇
(including ▇▇▇ ▇▇▇▇▇▇'▇ 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 through May 31, 1996,
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. The Agreement may be modified or
amended from time to time by mutual agreement between the and shall likewise
reimburse ▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇ ▇▇▇▇▇▇, any subsidiary or affiliate serves as investment advisor or
distributor.
12. Assignment. Any interest of ▇▇▇ ▇▇▇▇▇▇ 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 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 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President
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and the address of ▇▇▇ ▇▇▇▇▇▇. for this purpose is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel.
14. Personal Liability. As provided for in the Declaration of Trust of the
various Funds, under which the Funds are organized as unincorporated trust
under the laws of the State of Delaware and Pennsylvania, as the case may be,
the shareholders, trustees, officers, employees and other agents of the Fund
shall not personally be found 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 operation of this
agreement, ▇▇▇ ▇▇▇▇▇▇ 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.
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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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President
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SCHEDULE 1
1. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL U.S. GOVERNMENT TRUST, on behalf of its
series, ▇▇▇ ▇▇▇▇▇▇ American Capital U.S. Government Fund
2. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL TAX FREE TRUST, on behalf of its series, ▇▇▇
▇▇▇▇▇▇ American Capital Insured Tax Free Income Fund, ▇▇▇ ▇▇▇▇▇▇ American
Capital Tax Free High Income Fund, ▇▇▇ ▇▇▇▇▇▇ American Capital California
Insured Tax Free Fund, ▇▇▇ ▇▇▇▇▇▇ American Capital Municipal Income Fund,
▇▇▇ ▇▇▇▇▇▇ American Capital Limited Term Municipal Income Fund, ▇▇▇ ▇▇▇▇▇▇
American Capital New York Tax Free Income Fund, ▇▇▇ ▇▇▇▇▇▇ American Capital
New Jersey Tax Free Income Fund, ▇▇▇ ▇▇▇▇▇▇ American Capital Florida Insured
Tax Free Income Fund, ▇▇▇ ▇▇▇▇▇▇ American Capital California Tax Free Income
Fund, ▇▇▇ ▇▇▇▇▇▇ American Capital Michigan Tax Free Income Fund, ▇▇▇ ▇▇▇▇▇▇
American Capital Missouri Tax Free Income Fund and ▇▇▇ ▇▇▇▇▇▇ American
Capital Ohio Tax Free Income Fund
3. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL TRUST, on behalf of its series, ▇▇▇ ▇▇▇▇▇▇
American Capital High Yield Fund, ▇▇▇ ▇▇▇▇▇▇ American Capital Short-Term
Global Income Fund and ▇▇▇ ▇▇▇▇▇▇ American Capital Strategic Income Fund
4. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL EQUITY TRUST, on behalf of its series, ▇▇▇
▇▇▇▇▇▇ American Capital Utility Fund, ▇▇▇ ▇▇▇▇▇▇ American Capital Balanced
Fund, ▇▇▇ ▇▇▇▇▇▇ American Capital Value Fund, ▇▇▇ ▇▇▇▇▇▇ American Capital
Growth Fund, ▇▇▇ ▇▇▇▇▇▇ American Capital Great American Companies Fund, ▇▇▇
▇▇▇▇▇▇ American Capital Prospector Fund and ▇▇▇ ▇▇▇▇▇▇ American Capital
Aggressive Growth Fund
5. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PENNSYLVANIA TAX FREE INCOME FUND
6. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL TAX FREE MONEY FUND
7. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL FOREIGN SECURITIES FUND
8. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL MUNICIPAL INCOME TRUST
9. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL CALIFORNIA MUNICIPAL TRUST
10. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL HIGH INCOME TRUST
11. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL HIGH INCOME TRUST II
12. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME RATE INCOME TRUST
13. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL INVESTMENT GRADE MUNICIPAL TRUST
14. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL MUNICIPAL TRUST
15. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL CALIFORNIA QUALITY MUNICIPAL TRUST
16. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL FLORIDA QUALITY MUNICIPAL TRUST
17. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL NEW YORK QUALITY MUNICIPAL TRUST
18. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL OHIO QUALITY MUNICIPAL TRUST
19. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PENNSYLVANIA QUALITY MUNICIPAL TRUST
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20. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL TRUST FOR INSURED MUNICIPALS
21. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE MUNICIPALS
22. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE CALIFORNIA
MUNICIPALS
23. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE FLORIDA MUNICIPALS
24. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE NEW JERSEY
MUNICIPALS
25. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE NEW
YORK MUNICIPALS
26. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL TRUST FOR INVESTMENT GRADE
PENNSYLVANIA MUNICIPALS
27. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL MUNICIPAL OPPORTUNITY TRUST
28. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL ADVANTAGE MUNICIPAL INCOME TRUST
29. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL ADVANTAGE PENNSYLVANIA MUNICIPAL
INCOME TRUST
30. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL STRATEGIC SECTOR MUNICIPAL TRUST
31. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL VALUE MUNICIPAL INCOME TRUST
32. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL CALIFORNIA VALUE MUNICIPAL
INCOME TRUST
33. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL MASSACHUSETTS VALUE MUNICIPAL
INCOME TRUST
34. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL NEW JERSEY VALUE MUNICIPAL
INCOME TRUST
35. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL NEW YORK VALUE MUNICIPAL INCOME
TRUST
36. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL OHIO VALUE MUNICIPAL INCOME
TRUST
37. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PENNSYLVANIA VALUE MUNICIPAL
INCOME TRUST
38. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL MUNICIPAL OPPORTUNITY TRUST II
39. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL FLORIDA MUNICIPAL OPPORTUNITY TRUST
40. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL ADVANTAGE MUNICIPAL INCOME TRUST II
41. ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL SELECT SECTOR MUNICIPAL TRUST
42. THE EXPLORER INSTITUTIONAL TRUST, on behalf of its sub-trusts, Explorer
Institutional Active Core Fund and Explorer Institutional Limited Duration
Fund
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