EXHIBIT (h)(2)
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
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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 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.
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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 negligence 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
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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
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.
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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/ Xxxx Xxxxxxxx
-----------------------------------
Xxxx Xxxxxxxx
Vice President and Treasurer
XXX XXXXXX INVESTMENTS INC.
By: /s/ A. Xxxxxx Xxxxx
-----------------------------------
A. Xxxxxx Xxxxx
Managing Director
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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
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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
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