SECOND AMENDED AND RESTATED
FINANCIAL INTERMEDIARY
DISTRIBUTION AGREEMENT
Second Financial Intermediary Distribution Agreement (the "Agreement")
made as of this 21st day of August, 2003, by and between DELAWARE DISTRIBUTORS,
L.P. ("DDLP"), Delaware limited partnership, and LINCOLN FINANCIAL DISTRIBUTORS,
INC. ("LFD"), a Connecticut corporation.
WITNESSETH
WHEREAS, DDLP serves as the distributor of a number of investment
companies (individually a "Fund" and, collectively, the "Funds") registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), pursuant
to distribution agreements between each Fund and DDLP; and
WHEREAS, pursuant to the aforementioned distribution agreements, each
Fund has engaged DDLP to promote the distribution of its shares and, in
connection therewith and as agent for the Fund and not as principal, to
advertise, promote, offer and sell the Fund's shares to the public; and
WHEREAS, DDLP desires to enter into an agreement with LFD pursuant to
which LFD shall: (i) promote the sale of the Funds' shares through
broker/dealers, financial advisers and other financial intermediaries
(collectively "Financial Intermediaries"); (ii) create messaging and packaging
for certain non-regulatory sales and marketing materials related to the Funds;
and (iii) produce such non-regulatory sales and marketing materials related to
the Funds.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. DDLP hereby engages LFD to promote the sale of shares of each Fund and
each investment portfolio thereof listed in Appendix A hereto (as
revised from time to time) through Financial Intermediaries, and to
create and produce non-regulatory sales and marketing materials related
to the Funds as set forth herein.
2. LFD agrees to use its best efforts to promote the sale of the Funds'
shares designated by DDLP to retail investors through Financial
Intermediaries wherever their sale is legal, in such places and in such
manner, not inconsistent with the law and the provisions of this
Agreement and the Funds' Registration Statements under the Securities
Act of 1933, including the Prospectuses and Statements of Additional
Information contained therein.
3. LFD represents and warrants that it is, and shall remain at all times
during the effectiveness of this Agreement, a broker/dealer registered
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and qualified under applicable state securities laws in each
jurisdiction in which LFD may be required to be qualified to act as a
broker/dealer in securities, and a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD"). DDLP
represents and warrants that it is, and shall remain at all times
during the effectiveness of this Agreement, a broker/dealer registered
under the Exchange Act and qualified under applicable state securities
laws in each jurisdiction in which DDLP may be required to be qualified
to act as a broker/dealer in securities, and a member in good standing
of the NASD.
4. DDLP will provide LFD with:
(a) copies of the current Prospectuses and Statements of
Additional Information for each Fund, including all
supplements thereto;
(b) copies of each Fund's periodic reports to shareholders as soon
as reasonably practicable after DDLP receives such reports
from the Fund;
(c) technical language, data, and product content, product
positioning recommendations and sales ideas with respect to
the Funds;
(d) Fund-related materials prepared by DDLP and designated for
internal use only (subject to the terms and conditions
established from time to time by DDLP); and
(e) prompt notice of the issuance by the Securities and Exchange
Commission (the "SEC") of any stop order suspending the
effectiveness of the Registration Statement of any Fund, or
the initiation of any proceedings for that purpose.
5. LFD shall create and produce non-regulatory, non-shareholder materials
for, about, or related to, the Funds ("Advertising Materials"). DDLP
shall provide product information to LFD, including information related
to product descriptions, strategic positioning and product management.
LFD shall use such information when developing the creative messaging,
look and feel, layout and packaging of the advertising materials. LFD
agrees to submit to DDLP, prior to its use, the form of any Advertising
Materials prepared by LFD and proposed to be generally disseminated by
or for LFD, all Advertising Materialsprepared by LFD and proposed to be
used by LFD, and all Advertising Materials prepared by or for LFD for
such dissemination or for use by others in connection with the sale of
the Funds' shares. LFD also agrees that LFD will file or submit such
Advertising Materials to the NASD, SEC or other regulatory agency as
from time to time may be appropriate, considering practices then
current in the industry. LFD agrees not to use or to permit others to
use such Advertising Materials without the prior written consent of
DDLP if any regulatory agency expresses objection thereto or if DDLP
delivers to LFD a written objection thereto. LFD shall not be
responsible for or authorized to prepare materials relating to the
Funds for the purpose of satisfying regulatory requirements, including,
but not limited to, Prospectuses and Statements of Additional
Information and periodic shareholder reports. DDLP and LFD agree to
work together in good faith to resolve any disagreements between DDLP
and LFD about or objections by DDLP to Advertising Materials prepared
by LFD.
6. The responsibility of LFD hereunder shall be limited to the promotion
of sales of the Funds' shares through Financial Intermediaries, and the
creation and production of non-regulatory sales and marketing
materials. LFD is not empowered to approve orders for sales of the
Funds' shares or to accept payment for such orders. Sales of a Fund's
shares shall be deemed to be made when and where accepted by the Fund's
transfer agent on behalf of the Fund.
7. In consideration for the services provided by LFD under this Agreement,
DDLP shall pay LFD the compensation set forth on Schedule A to this
Agreement.
8. With respect to the apportionment of costs between DDLP and LFD
associated with activities with which both are concerned, the following
will apply:
(a) DDLP will pay the costs incurred in printing and mailing
copies of Fund Prospectuses and shareholder reports to
prospective investors;
(b) DDLP will pay the costs of any additional copies of Fund
financial and other reports and other Fund literature supplied
to DDLP by the Fund for sales promotion purposes;
(c) DDLP will bear the expense of the Advertising Materials that
relate exclusively to the Funds;
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(d) DDLP and LFD will jointly bear the expense of advertising and
promotional activities and materials relating both to the
Funds and to the other products distributed by LFD, the
apportionment of such expenses to be agreed upon by DDLP and
LFD from time to time; and
(e) The parties will agree to apportion other costs and expenses
between DDLP and LFD as necessary and as mutually agreed from
time to time.
9. Both DDLP and LFD may engage in other business, provided such other
business does not interfere with the performance by DDLP and LFD of
their respective obligations under this Agreement.
10. DDLP agrees to indemnify, defend and hold LFD harmless from and against
any and all losses, damages, or liabilities to which LFD may become
subject by reason of DDLP's willful misfeasance, bad faith, or gross
negligence in the performance of its duties under this Agreement. LFD
agrees to indemnify, defend and hold DDLP harmless from and against any
and all losses, damages, or liabilities to which DDLP may become
subject by reason of LFD's willful misfeasance, bad faith, or gross
negligence in the performance of its duties under this Agreement.
11. Copies of financial reports, Registration Statements and Prospectuses,
as well as demands, notices, requests, consents, waivers, and other
communications in writing which it may be necessary or desirable for
either party to deliver or furnish to the other will be duly delivered
or furnished, if delivered to such party at 2005 Market Street,
Philadelphia, Pennsylvania 19103-7094, or at such other address as DDLP
or LFD may designate in writing and furnish to the other.
12. This Agreement shall not be assigned, as that term is defined in the
1940 Act, by LFD and shall terminate automatically in the event of its
attempted assignment by LFD. This Agreement will automatically
terminate with respect to a Fund upon the termination of the
distribution agreement between DDLP and the Fund. This Agreement will
automatically terminate with respect to all Funds in the event that LFD
ceases to be a broker/dealer registered under the Exchange Act or a
member in good standing of the NASD. Except as specifically provided in
the indemnification provision contained in Paragraph 10 herein, this
Agreement and all conditions and provisions hereof are for the sole and
exclusive benefit of the parties hereto and their legal successors and
no express or implied provision of this Agreement is intended or shall
be construed to give any person other than the parties hereto and their
legal successors any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provisions herein contained.
13. (a) This Agreement shall remain in force with respect to a Fund
for a period of two year from the date hereof and from year to
year thereafter, but only so long as such continuance is
specifically approved at least annually by the Board of
Directors/Trustees of the Fund or by vote of a majority of the
outstanding voting securities of the Fund and only if the
terms and the renewal thereof have been approved by the vote
of a majority of the Directors/Trustees of the Fund who are
not parties hereto or interested persons of any such party,
cast in person at a meeting called for the purpose of voting
on such approval.
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(b) LFD may terminate this Agreement at any time by giving DDLP
written notice of its intention to terminate the Agreement at
the expiration of three months from the date of delivery of
such written notice of intention to DDLP.
(c) DDLP may terminate this Agreement at any time upon prior
written notice to LFD of its intention to so terminate at the
expiration of three months from the date of the delivery of
such written notice to LFD.
(d) The Board of Directors/Trustees of a Fund may terminate this
Agreement with respect to the Fund at any time upon prior
written notice to DDLP and/or LFD of its intention to so
terminate at the expiration of three months from the date of
delivery of such written notice to DDLP and/or LFD.
14. The validity, interpretation and construction of this Agreement, and of
each part hereof, will be governed by the laws of the Commonwealth of
Pennsylvania.
15. In the event any provision of this Agreement is determined to be void
or unenforceable, such determination shall not affect the remainder of
the Agreement, which shall continue to be in force.
DELAWARE DISTRIBUTORS, L.P. LINCOLN FINANCIAL DISTRIBUTORS, INC.
By: DELAWARE DISTRIBUTORS, INC.,
General Partner
By: By:
------------------------------------ ---------------------------------
Name: Name:
Title: Title:
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SCHEDULE A
to
SECOND AMENDED AND RESTATED
FINANCIAL INTERMEDIARY DISTRIBUTION AGREEMENT
The fees payable by DDLP to LFD under this Schedule A shall be calculated and
paid monthly.
I. Fees with respect to sales of shares of Funds other than Delaware VIP Trust
With respect to each sale through Financial Intermediaries on or after the date
of this Agreement, a non-recurring fee equal to the amount shown below will be
paid by DDLP to LFD.
Basis points
On Sales
---------------
Retail Mutual Funds except as noted below (1) .50%
Merrill Lynch Connect Program .25%
Registered Investment Advisers and .45%
H.D. Vest Institutional Classes
Citigroup Global Capital Markets, Inc. 0
(formerly Salomon Smith Barney)
International Equity Fund I Class
(1) - A, B, & C classes excluding money
market, house accounts, market timers
In addition to the non-recurring fee set forth above, a fee at the annual rate
set forth below of the average daily net assets of Fund shares outstanding and
beneficially owned by shareholders through Financial Intermediaries, including
those Fund shares sold before the date of this Agreement, will be paid by DDLP
to LFD.
Basis points
On Assets
---------------
Retail Mutual Funds (including money market, .04%
house accounts and market timers)
Merrill Lynch Connect Program 0
Registered Investment Advisers and .04%
H.D. Vest Institutional Classes
Citigroup Global Capital Markets, Inc. .04%
(formerly Salomon Smith Barney)
International Equity Fund I Class
II. Fees with respect to the Sale of Delaware VIP Trust shares through Allmerica
Variable Products.
With respect to each sale of Delaware VIP Trust shares on or after the date of
this Agreement through variable annuity and variable life insurance products for
which Allmerica Investments, Inc. ("Allmerica") is the principal underwriter
("Allmerica Variable Products"), a non-recurring fee equal to the entire
distribution allowance received by DDLP from Allmerica with respect to such
sale. No other fees will be payable to LFD with respect to sales of Delaware VIP
Trust shares.
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APPENDIX A
to
SECOND AMENDED AND RESTATED
FINANCIAL INTERMEDIARY DISTRIBUTION AGREEMENT
Delaware Group Adviser Funds Delaware Group Income Funds
Delaware Diversified Income Fund Delaware Corporate Bond Fund
Delaware U.S. Growth Fund Delaware Delchester Fund
Delaware Extended Duration Bond Fund
Delaware Group Cash Reserve Delaware High-Yield Opportunities Fund
Delaware Cash Reserve Fund Delaware Strategic Income Fund
Delaware Group Equity Funds I Delaware Group Limited-Term Government Funds
Delaware Balanced Fund Delaware Limited-Term Government Fund
Delaware Devon Fund
Delaware Group State Tax-Free Income Trust II
Delaware Group Equity Funds II Delaware Tax-Free Pennsylvania Fund
Delaware Decatur Equity Income Fund
Delaware Diversified Value Fund Delaware Group Tax-Free Fund
Delaware Growth and Income Fund Delaware Tax-Free Insured Fund
Delaware Social Awareness Fund Delaware Tax-Free USA Fund
Delaware Tax-Free USA Intermediate
Delaware Group Equity Funds III
Delaware American Services Fund Delaware Group Tax-Free Money Fund
Delaware Focused Growth Fund Delaware Tax-Free Money Fund
Delaware Focused Value Fund
Delaware Health Care Fund Delaware Pooled Trust
Delaware Small Cap Growth Fund The International Equity Portfolio
Delaware Technology and Innovation Fund The Real Estate Investment Trust Portfolio II
Delaware Trend Fund
Delaware VIP Trust
Delaware Group Equity Funds IV Delaware VIP Balanced Series
Delaware Diversified Growth Fund Delaware VIP Capital Reserves Series
Delaware Growth Opportunities Fund Delaware VIP Cash Reserve Series
Delaware VIP Emerging Markets Series
Delaware Group Equity Funds V Delaware VIP Global Bond Series
Delaware Retirement Income Fund Delaware VIP Growth Opportunities Series
Delaware Small Cap Contrarian Fund Delaware VIP High Yield Series
Delaware Small Cap Value Fund Delaware VIP International Value Equity Series
Delaware VIP REIT Series
Delaware Group Foundation Funds Delaware VIP Select Growth Series
Delaware Balanced Allocation Portfolio Delaware VIP Small Cap Value Series
Delaware Growth Allocation Portfolio Delaware VIP Social Awareness Series
Delaware Income Allocation Portfolio Delaware Trend Fund
Delaware S&P 500 Index Fund Delaware U.S. Growth Fund
Delaware Group Global & International Funds Voyageur Insured Funds
Delaware Emerging Markets Fund Delaware Tax-Free Minnesota Insured Fund
Delaware International Small Cap Value Fund Delaware Tax-Free Arizona Insured Fund
Delaware International Value Equity Fund
Voyageur Intermediate Tax-Free Funds
Delaware Group Government Fund Delaware Tax-Free Minnesota Intermediate Fund
Delaware American Government Bond Fund
Voyageur Mutual Funds II
Voyageur Investment Trust Delaware Tax-Free Colorado Fund
Delaware Tax-Free California Insured Fund
Delaware Tax-Free Florida Fund Voyageur Mutual Funds III
Delaware Tax-Free Florida Insured Fund Delaware Core Equity Fund
Delaware Tax-Free Missouri Insured Fund Delaware Select Growth Fund
Delaware Tax-Free Oregon Insured Fund
Voyageur Tax Free Funds
Voyageur Mutual Funds Delaware Tax-Free Minnesota Fund
Delaware Minnesota High-Yield Municipal Bond Fund
Delaware National High-Yield Municipal Bond Fund
Delaware Tax-Free Arizona Fund
Delaware Tax-Free California Fund
Delaware Tax-Free Idaho Fund
Delaware Tax-Free New York Fund
Agreed to and accepted:
DELAWARE DISTRIBUTORS, L.P. LINCOLN FINANCIAL DISTRIBUTORS, INC.
By: DELAWARE DISTRIBUTORS, INC.,
General Partner
By: By:
------------------------------------ ---------------------------------
Name: Name:
Title: Title:
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