Exhibit (h) (3)
AMENDED AND RESTATED
LEGAL SERVICES AGREEMENT
THIS AGREEMENT, dated as of August 13, 2008, 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").
WITNESSETH:
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. A monthly fixed dollar amount based on a pre-determined
allocation methodology will be applied to certain individuals and their
supervisors who work on matters relating to the Funds, which methodology
will be reviewed periodically. Such Legal Services Expenses will 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. The remaining one half (50%) of the
Allocable Legal Services Expenses shall be allocated to each respective
Fund and Xxx Xxxxxx Non-Participating Fund based first on the type of fund
(based on a predetermined allocation methodology for the various types of
funds, which allocation methodology will be reviewed periodically) and
then further allocated among funds of that type on the basis of the
relative net assets at the end of the period. Xxx Xxxxxx shall assume the
costs of Legal Services Expenses for the Xxx Xxxxxx Non-Participating
Funds for which reimbursement is not received.
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
2
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.
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.
3
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 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 000 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000, Attention: Chief Legal Officer and the address of Xxx
Xxxxxx, for this purpose is 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Chief Legal Officer.
4
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.
5
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/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
Treasurer and Chief Financial Officer
XXX XXXXXX INVESTMENTS INC.
By: /s/ Xxx X. Doberman
---------------------------------------
Xxx X. Doberman
Secretary and Managing Director
6
SCHEDULE 1
Open End Funds
XXX XXXXXX SERIES FUND, INC.
----------------------------
Xxx Xxxxxx American Value Fund
Xxx Xxxxxx Emerging Markets Fund
Xxx Xxxxxx Equity Growth Fund
Xxx Xxxxxx Global Equity Allocation Fund
Xxx Xxxxxx Global Franchise Fund
Xxx Xxxxxx Global Value Equity Fund
XXX XXXXXX RETIREMENT STRATEGY TRUST
------------------------------------
Xxx Xxxxxx 2010 Retirement Strategy Fund
Xxx Xxxxxx 2015 Retirement Strategy Fund
Xxx Xxxxxx 2020 Retirement Strategy Fund
Xxx Xxxxxx 2025 Retirement Strategy Fund
Xxx Xxxxxx 2030 Retirement Strategy Fund
Xxx Xxxxxx 2035 Retirement Strategy Fund
Xxx Xxxxxx 2040 Retirement Strategy Fund
Xxx Xxxxxx 2045 Retirement Strategy Fund
Xxx Xxxxxx 2050 Retirement Strategy Fund
Xxx Xxxxxx In Retirement Strategy Fund
XXX XXXXXX U.S. GOVERNMENT TRUST
--------------------------------
Xxx Xxxxxx U.S. Mortgage 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 Asset Allocation Conservative Fund
Xxx Xxxxxx Asset Allocation Moderate Fund
Xxx Xxxxxx Asset Allocation Growth Fund
Xxx Xxxxxx Core Equity Fund
Xxx Xxxxxx Global Growth Fund
Xxx Xxxxxx Leaders Fund
Xxx Xxxxxx Mid Cap 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 Core Plus Fixed Income Fund
Xxx Xxxxxx Managed Short Term Income Fund*
Xxx Xxxxxx Inflation-Linked Fixed Income Fund*
XXX XXXXXX TRUST II
-------------------
Xxx Xxxxxx Global Bond Fund*
Xxx Xxxxxx Tactical Asset Allocation Fund*
XXX XXXXXX EQUITY TRUST II
--------------------------
Xxx Xxxxxx American Franchise Fund
Xxx Xxxxxx Core Growth Fund
Xxx Xxxxxx Equity Premium Income Fund
Xxx Xxxxxx International Growth Fund
Xxx Xxxxxx Technology Fund
Xxx Xxxxxx International Advantage Fund
Xxx Xxxxxx Tax Free Money Fund
XXX XXXXXX LIFE INVESTMENT TRUST
--------------------------------
Mid Cap Growth Portfolio
7
Closed End Funds
Xxx Xxxxxx Advantage Municipal Income Trust II
Xxx Xxxxxx California Value Municipal Income Trust
Xxx Xxxxxx Dynamic Credit Opportunities Fund
Xxx Xxxxxx High Income Trust II
Xxx Xxxxxx Massachusetts Value Municipal Income Trust
Xxx Xxxxxx Municipal Income Trust
Xxx Xxxxxx Municipal Opportunity Trust
Xxx Xxxxxx Municipal Trust
Xxx Xxxxxx Ohio Quality Municipal Trust
Xxx Xxxxxx Pennsylvania Value Municipal Income Trust
Xxx Xxxxxx Select Sector Municipal Trust
Xxx Xxxxxx Senior Loan Fund
Xxx Xxxxxx Senior Income Trust
Xxx Xxxxxx Trust for Insured 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
8
